In a landmark 6-3 decision, the United States Supreme Court held in Bostock v. Clayton County, Georgia that an employer who terminates an individual simply for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964. Specifically, the Court stated, “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.”
Bostock was consolidated with two other cases for consideration by the Supreme Court. In each of the three cases, an employer terminated a long-time employee shortly after the employee revealed that he or she is homosexual or transgender. Gerald Bostock, who worked as a child welfare advocate for Clayton County, Georgia, was terminated after he began participating in a gay recreational softball league. Donald Zarda, a skydiving instructor in New York, was terminated days after he revealed that he is gay. And Aimee Stephens, who presented as a male when being hired by a funeral home in Garden City, Michigan, was terminated when years later she wrote a letter to her employer explaining that she planned to live and work as a woman.
Each employee brought suit under Title VII, alleging unlawful discrimination on the basis of sex. Different results were reached in the lower courts, so on appeal, the Supreme Court considered whether Title VII’s prohibition against employment discrimination because of an individual’s “sex” extends to an individual’s status as homosexual or transgender. The Court held that it does because “homosexuality and transgender status are inextricably bound up with sex.”
In reaching this historic conclusion, the Court first assumed that “sex” as used in Title VII refers to one’s status as either male or female as determined by reproductive biology. The Court then noted that Title VII does not require that the employee’s sex be the only or even the primary cause of the challenged employment decision; instead, so long as it was one “but-for” cause of the decision, that is enough to trigger Title VII. Finally, the Court emphasized that Title VII focuses on discrimination against individuals, not groups as a whole. Accordingly, the Court reasoned that “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex.”
After establishing this rule, the Court stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” For example, the court noted that if two employees are attracted to men and both are materially identical in all respects, except that one is a man and the other is a woman, the employer would discriminate against the male employee based on his sex if it terminated his employment for no reason other than the fact that he is attracted to men. Thus, discrimination based on one’s homosexuality or transgender status inevitably involves discrimination based on one’s sex.
In light of Bostock, employers would be well advised to update their anti-discrimination policies, if necessary, to include sexual orientation and transgender status. They should also ensure that their employees, particularly those with decision-making authority, are made aware of this decision and act accordingly. In so doing, they should follow this rule of thumb: If changing the employee’s sex will yield a different choice by the employer, a statutory violation will likely occur. Thus, a difference course of conduct should be pursued.