The Supreme Court Extends Title VII Protections to LGBTQ Employees
By Luis F. Calvo
On June 15, 2020, the U.S. Supreme Court issued a landmark 6-3 decision extending Title VII of the Civil Rights Act of 1964’s prohibitions against discriminations “because of sex” to gay, lesbian, and transgender employees. As a result, “[a]n employer who fires an individual merely for being gay or transgender” violates Title VII.
The Supreme Court issued a single decision for three different cases before the Court, all of which involved allegations that an employer terminated a long-time employee simply for being homosexual or transgender. In the first case, Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. After a decade with the county, Bostock began participating in a gay softball league. He was subsequently fired for conduct “unbecoming” of a county employee. In the second case, Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.
In the third case, Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. At the time of her hire, Ms. Stephens presented as a male. But in her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work fulltime as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her, “This is not going to work out.” Each employee sued under Title VII, alleging unlawful discrimination on the basis of sex.
The Supreme Court’s decision tracked the text of Title VII closely. Gay and transgender discriminatory prohibitions do not appear in the text of the statute. Notwithstanding, Justice Gorsuch, writing for the majority, framed the Court’s tasks as determining the “ordinary public meaning” of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).
Ultimately, the Court held that “An 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 defendant-employers presented three main arguments against extending Title VII to gay and transgender employees. First, employers claimed that Congress did not address gay or transgender statuses in Title VII, which is why such statutes are conceptually distinct from sex and excluded from Title VII’s reach. The Supreme Court, however, held that discrimination against these employees “necessarily entails discrimination based on sex.” Justice Gorsuch further added that there is no “such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII.” Justice Gorsuch went on to cite “[s]exual harassment” as “conceptually distinct from sex discrimination, but  can fall within Title VII’s sweep.”
Second, employers argued that Congress considered and rejected multiple bills that would extend Title VII’s protections to LGBTQ employees. The Supreme Court dismissed these concerns holding that “[a]ll we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.”
Finally, the employers argued, “few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons.” The Majority rejected this argument, holding that Title VII “is written in starkly broad terms. It has repeatedly produced unexpected applications[.]” Elsewhere, Justice Gorsuch, cited multiple Title VII protections that may not have been imagined by the 1964 drafter, including sexual harassment against men and motherhood.
The Court also acknowledged broader policy arguments, such as concerns that its decision may lead to “sex-segregated bathrooms, locker rooms, and dress codes.” Because none of those issues were before the Court, they were rejected as premature.
This decision represents a sea of change in Title VII’s interpretation and protections. The Supreme Court’s holding that it is unlawful to fire employees because they are LGBTQ will empower employees to bring Title VII claims against their employers. Employers must review their internal policies, procedures, and handbooks to ensure that they are consistent with the Supreme Court’s ruling. Employers may also consider implementing or revising their employee trainings to incorporate the Court’s decision. Should you have any questions about how this decision impacts your company, please contact any of our firm’s Labor and Employment lawyers. To learn more, visit us on our website at www.scotthulse.com.
 Bostock v. Clayton County Georgia, on certiorari to the United States Court of Appeals for the Eleventh Circuit, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.
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