June 15, 2020

Supreme Court Extends Title VII Protections to Sexual Orientation and Transgender Status

Holland & Knight Alert
Phillip M. Schreiber

In Bostock v. Clayton County, Georgia, No. 17-1618, the U.S. Supreme Court has ruled that Title VII of the Civil Rights Act of 1964 (Title VII) protects gay and transgender workers from workplace discrimination. The 6-3 decision, issued on June 15, 2020, and authored by Justice Neil Gorsuch, held that an employer who fires an individual merely because that individual is gay or transgender violates Title VII because "[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."


The Court took up Bostock with Altitude Express Inc., et al. v. Zarda and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al. In Bostock, Clayton County fired Gerald Bostock for conduct "unbecoming" a county employee shortly after he began participating in a gay recreational softball league. In Zarda, Altitude Express fired Donald Zarda days after he mentioned being gay. And in R. G. & G. R. Harris, Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to "live and work full-time as a woman."

Each of the employees brought suit under Title VII alleging unlawful discrimination on the basis of sex.

The Decision

The Court focused its decision on the ordinary public meaning of the terms used in Title VII at the time of its enactment. Specifically, the Court considered "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 with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.' " (Ellipses in original.) The Court found the term "sex" referred to the biological distinctions between male and female.

The Court then applied this definition of "sex" to Title VII's "but for" causation standard. According to the Court, "That form of causation is established whenever a particular outcome would not have happened 'but for' the purported cause. … In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause." The Court explained, "When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff 's sex was one but-for cause of that decision, that is enough to trigger the law." In other words, "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." Thus, an employer cannot escape liability just by citing some other factor that contributed to the challenged employment decision if the decision would not have been made if the employee was a different biological sex.

Applying the but-for causation standard to the issue of whether Title VII prohibits discrimination based on an employee's sexual orientation or transgender status, the Court concluded that discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. Therefore, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII because sex is necessarily a "but-for" cause when an employer discriminates against homosexual or transgender employees.

The Court observed that concerns about religious convictions are addressed in Title VII's carve-outs for religious institutions and the First Amendment's bar on the application of employment discrimination laws "to claims concerning the employment relationship between a religious institution and its ministers." The Court reserved for future cases the implications of the Religious Freedom Restoration Act of 1993.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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