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The U.S. Supreme Court Extends Protections for Homosexual & Transgender Employees Under Title VII

June 15, 2020

By Liani J. Reeves

In a long awaited decision, the Supreme Court of the United States (“SCOTUS”) (voting 6-3) extended protections for homosexual and transgender employees under Title VII of the Civil Rights Act of 1964. The decision will have less impact in states like Oregon, Washington, and California where state law already extends protections on the basis of sexual orientation and gender identity. However, there are a number of states where there are no such protections under state law and employers are free to discriminate against employees for being homosexual or transgender. The SCOTUS decision today brings that to an end.


Under Title VII, Congress outlawed discrimination in the workplace because of race, color, religion, sex, or national origin. The language does not explicitly include sexual orientation or gender identity. Lower courts that have been presented with this issue have reached different conclusions as to whether Title VII extends to sexual orientation and gender identity. Highlighting the confusion were conflicting positions taken by different federal agencies. For example, in one case, the Equal Employment Opportunity Commission argued that sexual orientation was included in Title VII while the U.S. Department of Justice argued the opposite.

The Supreme Court accepted review of three cases earlier this year to clear up any ambiguity.

Lower Court Decisions

The Supreme Court decision consolidated three cases from lower federal Circuit Courts: Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. the EEOC. In each of the three cases, an employer fired a long-time employee shortly after the employee revealed that they are homosexual or transgender.

Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate for over a decade. He was fired after he began participating in a gay recreational softball league for conduct “unbecoming” of a county employee. Donald Zarda worked as a skydiving instructor for Altitude Express in New York for several seasons. Within days of mentioning that he was gay, he was fired. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Michigan. In her sixth year with the company, she informed her employer that she planned to “live and work full-time as a woman.” The company fired her, telling her “this is not going to work out.”

In all three cases, the employers did not dispute that they fired the employees for being homosexual or transgender. Rather, they contended that even intentional discrimination against employees based on being homosexual or transgender is not a basis for Title VII liability.

The three circuits presented with this question came up with different results. In Bostock, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being homosexual and dismissed Bostock’s case as a matter of law. In Zarda, the Second Circuit concluded that sexual orientation discrimination violates Title VII and allowed the case to proceed. In R.G. & G.R. Harris Funeral Homes, the Sixth Circuit held that Title VII bars employers from firing transgender employees because they are transgender.

SCOTUS Decision

Today, SCOTUS has finally spoken. The Court’s analysis focused on the meaning of “sex” under Title VII. The Court went through prior decisions interpreting Title VII, explaining that the Court previously stated that the statute prohibits employers from taking certain actions “because of” sex; and the meaning of “because of” is “by reason of” or “account of” sex. The Court rejected a number of reasons put forward by the employers about why discrimination on the basis of sexual orientation or transgender status does not involve discrimination because of sex.

Rather, the Court stated: “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.”

The Court also held that an employer cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. In summary, it does not matter if other factors besides the plaintiff’s sex contributed to the decision. In so holding, the Court described Title VII’s “simply but momentous” message: “An individual employee’s sex is ‘not relevant to the selection, evaluation, or compensation of employees.’”

What it Means for Employers

For most employers in Oregon, Washington, and California, the decision will have little impact on existing requirements or policies. However, it is always a good idea to review your policies to ensure that they explicitly include sexual orientation and gender identity.

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