Publication Details

Special Alert: U.S. Supreme Court Rules Civil Rights Law Protects Gay and Transgender Workers Too

Jun 15, 2020 | Related Attorney Leonid M. Zilberman | Topic: Employment

The Supreme Court declared today that the historic Civil Rights Act of 1964 protects LGBTQ employees from workplace discrimination.  In a trio of cases Altitude Express v. Zarda, case number 17-1623; Bostock v. Clayton County, Georgia, case number 17-1618; and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., case number 18-107 the U.S. Supreme Court ruled that Title VII of the 1964 Civil Rights Act protects gay and transgender workers against employment discrimination because of their sex.

In each of these three cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. 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 employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and dismissed Mr. Bostock’s suit as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.  That split is what set up the three cases before the U.S. Supreme Court.

The 6 to 3 decision in favor of gay and transgender workers was a monumental shift away from the last 50 plus years of federal decisions, which held that Title VII did not apply or protect to gay or transgender employees.  Following Title VII's passage in 1964, every court to consider the question said the law's ban on sex-based bias does not protect sexual orientation, gay or transgender workers.  For that reason, in 2000 the California legislature enacted AB-1001, which amended the California Fair Employment and Housing Act and broadened employment, housing, and credit protections for gay men, lesbians, and bisexuals. The law was further expanded in California to protect transgender people from unfair discrimination in 2003. Over the last 20 years the tide began to turn where other states as well as some federal regulations began interpreting Title VII to also cover the LGBTQ community, but there was no national prohibition and a patchwork of different laws and outcomes.

In a surprising opinion, Chief Justice John Roberts and Justice Neil Gorsuch sided with the court's liberal members in finding that the ban on discrimination "because of sex" in Title VII of the Civil Rights Act covers sexual orientation and gender identity.

Justice Gorsuch wrote the majority opinion stating: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.”

Justice Gorsuch reasoned that "The straightforward application of Title VII's terms interpreted in accord ... with their ordinary public meaning at the time of their enactment resolves these cases." Joining the decision were Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan. In dissent were Justices Thomas, Alito and Kavanaugh.

The Trump administration had weighed in on the cases, arguing on behalf of a group of employers who had been brought to court for firing their gay or transgender employees. The Department of Justice had argued that Title VII did not cover gay or transgender employees because Congress did not intend for gay or transgender employees to be covered when it enacted Title VII in 1964.  Lawyers for the employees in the three cases argued that it is analytically impossible to fire an employee based on that employee’s status as a transgender or gay person without being motivated, at least in part, by the employee’s sex.  The Court’s decision today essentially held that discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.

In his own separate dissent, Justice Kavanaugh noted, "Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation."

However, Justice Kavanaugh concluded: “To refuse enforcement just because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms."

In the end, the high court’s decision on a much-anticipated line of cases closes a deep divide among the circuits and hands a huge win to the LGBTQ community.  Now, workers in all states will enjoy the same anti-discrimination protections that California employees have enjoyed over the last 17 years.