SCOTUS: Discrimination Based on Sexual Orientation or Transgender Status Is Sex Discrimination Under Title VII | Practical Law

SCOTUS: Discrimination Based on Sexual Orientation or Transgender Status Is Sex Discrimination Under Title VII | Practical Law

In Bostock v. Clayton Cty., Georgia, the US Supreme Court held that the protections against sex discrimination provided by Title VII of the Civil Rights Act of 1964 (Title VII) include discrimination based on sexual orientation and gender identity.

SCOTUS: Discrimination Based on Sexual Orientation or Transgender Status Is Sex Discrimination Under Title VII

by Practical Law Labor & Employment
Published on 16 Jun 2020 • USA (National/Federal)
In Bostock v. Clayton Cty., Georgia, the US Supreme Court held that the protections against sex discrimination provided by Title VII of the Civil Rights Act of 1964 (Title VII) include discrimination based on sexual orientation and gender identity.
On June 15, 2020, in Bostock v. Clayton Cty., Georgia, the US Supreme Court in a 6-3 majority decision held that an employer who fires an individual because the individual is gay, lesbian, or transgender violates the sex discrimination protections of Title VII.
( (U.S. June 15, 2020).)
The Court, in a decision by Justice Gorsuch, resolved three consolidated cases and reasoned that:
  • A Title VII violation occurs if an employer intentionally relies, in part, on an individual employee's sex when deciding to terminate the individual's employment.
  • An employer that fires an individual for being gay, lesbian, or transgender fires that person for traits or actions it would not have questioned in members of a different sex, exactly what Title VII prohibits.
  • Sex is a but-for cause when an employer discriminates against employees based on sexual orientation or gender identity; an employer that discriminates against someone based on either of these factors clearly has intent to rely on sex in that decision.
Although the statutory text of Title VII does not specifically state that sexual orientation and gender identity are protected, the Supreme Court pointed to substantial precedent showing a number of sex-related issues falling under the umbrella of Title VII's sex discrimination protections that Congress might not have foreseen:
  • In Phillips v. Martin Marietta Corp., the Supreme Court held that a company violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men (400 U.S. 542 (1971)).
  • In Los Angeles Dept. of Water and Power v. Manhart, the Court held that an employer's policy requiring women to make larger pension fund contributions than men because women tend to live longer violated Title VII, even though the policy itself treated men and women evenly as groups (435 U.S. 702 (1978)).
  • In Oncale v. Sundowner Offshore Services, Inc., where a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex, the Court held it did not matter that the alleged discrimination was committed by members of the same sex as the victim (523 U.S. 75 (1998)).
Based on this precedent, the Supreme Court stated that:
  • It does not matter what an employer calls its discriminatory practice, how others might label the practice, or what else might motivate the practice.
  • The plaintiff's sex does not have to be the sole or primary cause of the employer's adverse action.
  • An employer cannot avoid liability by demonstrating that it treats men and women comparably as groups. The focus is on the treatment of the individual.
The Court:
  • Rejected the argument that sexual orientation and gender identity should not be included within sex discrimination because they may not have been intended by the drafters of Title VII in 1964, noting that any limits on the drafters' imagination are no reason to ignore the demands of the law.
  • Stated that:
    • Title VII's message prohibiting sex discrimination is simple and momentous (see Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989));
    • sexual orientation and gender identity are not relevant to employment decisions; and
    • an employer cannot discriminate against someone based on sexual orientation or gender identity without discriminating against them based on sex.
  • Maintained that an employer can still avoid liability if it can prove that, had it not taken gender into account, it would have come to the same employment decision regarding a particular individual.
In dissent, Justice Alito argued, among other things, that:
  • In this decision, the majority engaged in litigation, not adjudication.
  • Numerous bills have previously been introduced to add sexual orientation and gender identity to the list of groups protected by Title VII, but none have passed both houses of Congress.
  • Sex, sexual orientation, and gender identity are different concepts, and discrimination because of sexual orientation or gender identity does not necessarily entail discrimination because of sex.
The Supreme Court's decision in Bostock has massive impact, affirmatively recognizing sexual orientation and gender identity as protected within the category of "sex" under Title VII. It confirms that discriminating against someone for their sexual orientation or gender identity is discriminating against them based on sex. Employers should be aware that this decision can open up a wave of potential future litigation from individuals who allege that they are subject to workplace discrimination based on their membership in either of these communities. More than 20 states already prohibit private employers from discriminating based on sexual orientation or gender identity. Employers should revise their employment policies to address this important federal development. For more information, see: