Client Alert: The Supreme Court Rules Employers Cannot Terminate Employees for Being Gay or Transgender

In Bostock v. Clayton County, Georgia, the U.S. Supreme Court today ruled in a 6-3 decision that an employer that fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The Bostock decision consisted of three Circuit Court of Appeals cases involving the Second, Sixth, and Eleventh Circuits. The Eleventh Circuit held that that Title VII did not prohibit Clayton County, Georgia from terminating Gerald Bostock for being gay and dismissed his case as a matter of law. The Second Circuit allowed Donald Zarda’s claim to proceed after he was terminated for being gay. Similarly, the Sixth Circuit (which controls Ohio employers) allowed Aimee Stephens’ claim to proceed after Stephens was terminated for being transgender.

Title VII makes it “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.” In writing for the majority, Justice Gorsuch, who was appointed by President Trump, focused on the plain language of Title VII in holding that an employer violates Title VII when it intentionally fires an individual based in part on their sex stating that “[B]ecause discrimination based on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalized an employee for being homosexual or transgender also violates Title VII.” Bostock, syllabus p. 2.

The Court majority rejected the employers’ argument that the legislative history of Title VII never contemplated the law applying to homosexuals or transgender individuals. In doing so, the majority argued that legislative history had no bearing where there is no ambiguity to the language of Title VII. Bostock, syllabus p. 4.

The Bostock decision is one of the more significant employment-related decisions issued by the Supreme Court in some time. It provides needed clarity to an issue that has been bouncing around in the lower courts for years. And, more importantly, it will extend workplace protections to millions of gay, lesbian, and transgender workers. Prudent employers will now look to update their personnel policies pertaining to this change, and will plan for employee training to assure staff understand the import of this change.