Landmark SCOTUS Decision Holds LGBT Employees Are Protected From Discrimination Under Title VII

Employment Law

In Bostock v. Clayton County, Georgia, a landmark 6-3 decision, the United States Supreme Court ruled today that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity. Justice Neil Gorsuch joined the liberal members of the Court in ruling in favor of the employees, while Justices Alito, Thomas and Kavanaugh dissented. This expands the reach of Title VII to an estimated 3.9 million LGBT workers. Only 28 U.S. states had protections prohibiting employment discrimination on the basis of sexual orientation or gender identity, while a 29th state (Wisconsin) prohibited discrimination solely based on sexual orientation. The decision also resolved a split among the Courts of Appeals on whether these characteristics were protected as a form of discrimination based on “sex” under Title VII, as illustrated by the three cases that formed the basis for the ruling.

First, in 2013, R. G. & G. R. Harris Funeral Homes fired funeral director 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.” Stephens had been with the company for six years at the time. The Sixth Circuit had reversed the trial court’s grant of summary judgment in favor of the funeral home and denial of the employee’s motion, and instead ordered entry of summary judgment in favor of Stephens.

Second, in 2010, Altitude Express fired Donald Zarda, a skydiving instructor who had been with the company for several years, days after he mentioned being gay to a client of the school prior to a tandem skydive. He later said this was simply to “preempt any discomfort” the client felt. The Second Circuit had reversed summary judgment in favor of the employer in holding that sexual orientation discrimination was a form of sex discrimination.

Third, Clayton County, Georgia, fired Gerald Bostock, a child welfare advocate, for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Bostock had been an employee of the county for ten years at the time. His case was dismissed at the pleadings stage and affirmed on appeal by the Eleventh Circuit, on the basis that sex discrimination did not include sexual orientation. 

The Court’s ruling resolves the circuit split and effectively extends the protections of Title VII to a large cross-section of workers who were not previously covered by any similar protections under state laws. Employers operating in these states should ensure that their policies are updated accordingly, including a review of dress code and discrimination/harassment policies.

Read the Supreme Court opinion here.

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