In a majority opinion issued today, the United States Supreme Court held Title VII’s protection against sex discrimination in the workplace includes discrimination on the basis of sexual orientation and gender identity. Specifically, the Court noted:
“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 decision addressed three separate cases before the Supreme Court involving individual employees who were terminated from their employment shortly after their respective employers learned they were gay or identified as transgender. The employers did not dispute the individual employees were terminated because they were gay or identified as transgender; but argued the statutory definition of discrimination based on “sex” when Title VII was passed in 1964 was not intended to include these groups. Additionally, the employers argued their policies did not discriminate against employees based on sex because both male and female gay and transgender employees would be treated the same. In rejecting these arguments, the Supreme Court made clear:
“An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”
Finally, the Supreme Court reiterated an employee’s sex does not have to be the sole or primary cause of an employer’s adverse action for liability to attach under Title VII.
See Bostock v. Clayton County, Georgia, No. 17-1618 (Argued Oct. 8, 2019, decided June 15, 2020) available at https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf