As I’m sure all of you have already heard, yesterday, the U.S. Supreme Court issued a decision in Bostock v. Clayton County holding that an employer that fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The opinion is 172 pages long – the majority opinion is 33 pages and the remainder is devoted to two separate dissenting opinions, one of which was written by Justices Alito (joined in by Justice Thomas) and a separate opinion by Justice Kavanaugh.
The decision involved three lawsuits filed by employees who were terminated by their employers. One of these cases involved Gerald Bostock who worked as a child welfare advocate, sued his employer, Clayton County, Georgia after he was fired for conduct “unbecoming” a county employee after he began participating in a gay recreational softball league. The second case involved a lawsuit filed by Donald Zarda (a skydiving instructor) against his employer Altitude Express after he was fired for mentioning that he was gay. The third case was filed by Aimee Stephens who was fired after she informed her employer, G&G.R Harris Funeral Homes that she planned to live and work as a woman (she presented as a male when she was hired).
Each of the employees sued their employers alleging sex discrimination under Title VII. The cases made their way to the respective federal courts of appeals. In Bostock’s case, the 11th Circuit Court of Appeals found no Title VII protection for employees fired for being gay. the 2nd and 6th Circuits, however, allowed Zarda’s and Stephens’ claims to proceed.
Title VII states, in part, 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 . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).
The majority opinion, authored by Justice Gorsuch, focused on what it termed the unambiguous language of Title VII’s prohibition on sex discrimination to find a violation in all three cases. The majority noted that a Title VII violation occurs when an employer intentionally fires an individual employee based in part on sex. The Court explained that a statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, the Court held that an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.
The dissenting opinions accused the majority of “legislating” in its interpretation of Title VII’s prohibition on sex discrimination to include gay and transgender discrimination. Specifically, Justice Alito’s dissent notes that neither “sexual orientation” nor “gender identity” appears on the list or prohibited discrimination in Title VII, and neither were contemplated in 1964 when the Civil Rights Act was enacted.