Today, the U.S. Supreme Court decided three cases brought by employees terminated for being gay or transgender. (Bostock v. Clayton County, Georgia.) These cases were brought as sex discrimination claims under Title VII of the Civil Rights Act of 1964. 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 undistinguishable role in the decision; exactly what Title VII forbids.” Thus, the Court outlawed employment discrimination based on sexual orientation and gender identity across the country.
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.
In these cases, the employers did not dispute they fired the plaintiffs for being gay or transgender. Rather, they argued Title VII does not prevent discrimination based on sexual orientation or gender identity, i.e., that such discrimination is not “because of sex.”
Title VII had not previously been applied to sexual orientation or gender identity discrimination claims. In today’s 6-3 decision (with Chief Justice Roberts and Justice Gorsuch joining the four left-of-center justices), the Supreme Court held that firing or refusing to hire a gay, lesbian, bisexual, or transgender person is illegal sex discrimination:
An employer violates Title VII when it intentionally fires an individual based in part on sex … . If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred. (Emphasis added.)
In the Court’s view, it is unimportant whether gender identity or sexual orientation fall within Title VII’s definition of “sex.” Rather, an employment decision made on the basis of gender expression or sexual orientation violates Title VII because that decision is necessarily grounded in an employee’s sex. The Supreme Court hypothesized two employees, identical in every way except sex. Per the Court: “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.”
Title VII and, therefore, Bostock v. Clayton County, is limited to workplace discrimination claims. Discrimination in places of public accommodation (i.e., most businesses) remains legal in dozens of states. Further, this Supreme Court decision does not change California law. The California Fair Employment and Housing Act is broader than Title VII, protecting gender identity, gender expression, and sexual orientation in housing and employment. Other civil rights laws address public accommodations and government conduct. The employers’ actions in the cases the U.S. Supreme Court decided today were plainly unlawful in California. Therefore, this case will not substantively affect what constitutes unlawful discrimination in California. Nonetheless, it clarifies discrimination claims brought under Title VII and will have wide ranging effects on employment law throughout much of the country. It may also ease passage of a federal statute to protect LGBTQ Americans from discrimination in public accommodations and by governments.