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By Tyson R. Woodford

On June 15, 2020 the Supreme Court of the United States published a landmark decision finding that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination. The case, Bostock v. Clayton County, 2020 U.S. LEXIS 3252, considered three separate cases where employees challenged their terminations under Title VII of the 1964 Civil Rights Act. Two cases involved employees who were fired because they were gay. The employee in the third case was fired for being transgender. None of the employers disputed that the employees were fired because of their sexual orientations or gender identities. Id. at *6.

Title VII states 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, written by Justice Gorsuch, reasoned that when an employee is terminated for being homosexual or transgender, the individual is fired for “traits or actions [the employer] would not have questioned in members of a different sex.” In other words, an individual’s sex is necessarily considered when judgments are made based on sexual orientation or gender identity. See Bostock, 2020 U.S. LEXIS 3252 at *23-24.

Moving forward, plaintiffs will prevail in employment disputes if they prove that they were discriminated against because of their sexual orientation or gender identity. The Court’s message is clear “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” Id. at *20-21. When employers contend that a termination of an employee was not discriminatory, that employee will be forced to prove that their gay or transgender identity was either a “motivating factor” or a “but-for cause” of their adverse employment action. Id. at *15-16.

The Supreme Court’s decision only addressed the issue of gay or transgender individuals who were fired due to their sexual orientation or gender identity. Id. at *56. Future questions that may reach the Court could involve sex-segregated bathrooms, locker rooms, dress codes, and participation in high-school sports. Id. at *55; see also Id. at *118-19 (J. Alito, dissenting). Other potential questions include the current decision’s impact on housing, employment by religious organizations, healthcare, and freedom of speech. Id. at *120-24 (J. Alito, dissenting).