Supreme Court Rules that Title VII Protects Gay and Transgender Workers

June 15, 2020 Advisory

The United States Supreme Court issued a landmark decision today in Bostock v. Clayton County, holding that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against individuals for being gay or transgender. The 6-3 decision reasons that discrimination based on homosexuality or transgender status constitutes sex discrimination under Title VII because “homosexuality and transgender status are inextricably bound up with sex.” This decision resolves a split of authority among lower courts and impacts U.S. employers with 15 or more employees, which are covered by Title VII.

Rather than dispute that they had fired the plaintiffs for being either gay or transgender, the employers in Bostock argued that Title VII does not bar discrimination on the basis of homosexuality or transgender status.  The Court rejected these arguments, concluding that “[f]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex.”  According to the Court, such discrimination “has always been prohibited by Title VII’s plain terms” and “should be the end of the analysis.”

The Court explained that by discriminating against gays, the employer intentionally penalizes employees of one sex for being attracted to individuals of one sex, when it would not penalize employees of the opposite sex for the same conduct. Similarly, by discriminating against transgender employees, the employer discriminates against persons with one sex identified at birth and another today. Either way, the individual’s sex is unavoidably considered in the decision.

The Court also offered three important reminders for employers that have universal application beyond sex discrimination:

  • It is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.
  • The plaintiff’s sex need not be the sole or primary cause of the employer’s discriminatory decision; instead, it need only be a “but for” cause. Explaining this point further, the Court reasoned that “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” The Court’s reasoning suggests that the same analysis would apply equally to the other characteristics that Title VII protects, as well: race, color, religion and national origin.
  • An employer cannot escape liability for discrimination by demonstrating that it treats employees or applicants comparably as groups, because Title VII’s focus is on individuals.

Finally, the Court declined to address any potential broader implications of its decision, such as bathrooms, locker rooms and dress codes, which were not at issue in these cases. The Court also recognized, but declined to address, potential free exercise of religion arguments that were not at issue in these cases. However, the Bostock holding stands in notable and stark contrast to the Trump Administration’s finalization of a rule (announced just three days ago) designed to roll back Obama-era protections against transgender discrimination under the Affordable Care Act. Litigation questioning that new rule, which provides a much more narrow definition of “sex” than the definition adopted today by the Supreme Court, will inevitably be filed.

As a result of today’s decision, employers covered by Title VII should take appropriate measures to immediately comply with the prohibition against gay and transgender discrimination including, without limitation, updating written policies and training programs, and ensuring that employees who have responsibility for making employment decisions are advised of this important development in the law.

Furthermore, the Supreme Court’s interpretation of the term “sex” as used in Title VII may have a sweeping impact on other areas of the law, ranging from laws governing the education sector to laws impacting employee benefits, such as health plans, adoption assistance and parental leave benefits. For example, the nondiscrimination provision of the Affordable Care Act prohibited discrimination under health plans by cross-referencing several other civil rights laws, including Title VI of the Civil Rights Act of 1964 (Title VI) and Title IX of the Education Amendments of 1972 (Title IX). In turn, both Title VI and Title IX prohibit discrimination on the basis of “sex.” In short, employers and educational institutions should not limit their compliance review to personnel policies as a result of this development. Instead, all aspects of a business that are covered by federal laws prohibiting discrimination because of “sex” should be reviewed to mitigate the risk of claims of discrimination that may grow out of the Bostock decision.

Armstrong Teasdale’s Employment and Labor practice closely monitors developments in the law and court decisions across the country for rulings that affect employer’s legal strategies. We will issue additional advisories as the legal obligations of employers continue to evolve. For assistance with updating policies, training, or communicating with employees about this decision, contact any member of the Armstrong Teasdale Employment and Labor practice, or your regular trusted AT contact.

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