Today, the United States Supreme Court held that the Title VII prohibits employers from discriminating against employees on the basis of sexual orientation or gender identity. Bostock v. Clayton County, 590 U.S. __, 2020 WL 3146686 (2020). Justice Neil Gorsuch authored the 6-3 decision, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Bostock addressed sexual orientation discrimination, but was combined with two other related cases, one of which addressed gender identity discrimination.
Under Title VII, 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.” The Court explained that Title VII creates a “but-for causation” standard to determine whether an employer violates the statute, and that under such standard, an employer invariably considers an employee’s sex when it discriminates based on sexual orientation or gender identity. For example, Justice Gorsuch offered a hypothetical in which an employer has a policy of firing all gay and lesbian employees. If an employee brings a female spouse to a holiday party, the employer’s decision whether to fire that employee under the employer’s policy will depend entirely on whether the employee is a man or woman; if the employee is a man, he will not be fired, but if the employee is a woman, she will.
The Court also responded to several key arguments from the dissent and employer defendants. The Court rejected the argument that, if words are given their “conversational” use, someone fired based on their sexual orientation or gender identity would not say that they were fired because of sex; rather, the Court explained conversational conventions do not control Title VII’s legal analysis. Moreover, the Court rejected the argument that Title VII’s drafters didn’t envision the law to cover sexual orientation and gender identity discrimination. In response to concerns that Title VII may conflict with an employer’s religious convictions, the Court responded that the First Amendment (specifically the Ministerial Exception) and the Religious Freedom Restoration Act (RFRA) may provide a defense to employers in some cases. The Court, however, explicitly reserved these religious liberty questions for future cases.
What Employers Should Know
For some time, California employers have been prohibited from discriminating on the basis of sexual orientation or gender identity under California’s Fair Employment and Housing Act. With the Court’s decision in Bostock, all employers in the United States are prohibited from discriminating against employees based on their sexual orientation or gender identity. Contact Payne & Fears LLP if you have questions about this ruling or implementing anti-discrimination policies, generally, in your workplace.