Law Offices of Yale Pollack,P.C

Supreme Court Holds That Title VII Protects Homosexual And Transgender Employees

The U.S. Supreme Court ruled Monday, June 15, 2020, that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 protects homosexual and transgender workers. In a 6 to 3 decision with Justice Neil M. Gorsuch writing for the majority, the Court interpreted the Civil Rights Act of 1964’s prohibition against discrimination based on sex to include discrimination based on sexual orientation and gender identity.

The Supreme Court’s ruling came through a set of three cases that were consolidated for oral argument. In Harris Funeral Homes v. EEOC, an employee was fired shortly after informing her employer of her intent to transition. The Sixth Circuit ruled in her favor. In Altitude Express, Inc. v. Zarda, a skydiving instructor was fired after telling a patron that he was gay. The Second Circuit ruled against him. In Bostock v. Clayton County, GA, a gay employee was fired after a colleague made a disparaging remark about the employee’s sexual orientation and participation in a gay softball league. The Eleventh Circuit ruled against the employee.

All three cases turned on the same issue: whether the phrase “sex,” as used in Title VII, includes an individual’s sexual orientation or gender identity. The employers argued that “sex” literally refers to status as male or female, as determined by reproductive biology. The employees alleged that the definition of “sex” is broader and encompasses sexual orientation and gender identity.

Judge Gorsuch opined that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Court summarized its opinion with the following example:
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”

The full text of the decision is available here.