“Because of Sex”: Supreme Court Finds Title VII Protects Gay and Transgender Workers

June 17, 2020 • Brian C. Nadler

On June 15, 2020, the U.S. Supreme Court decided Bostock v. Clayton County, 590 U.S. ____ (2020). In so deciding, the Court held that lesbian, gay, bisexual, and transgender workers are protected from discrimination in the workplace.

Bostock consolidated and resolved three important cases: (1) Bostock v. Clayton County, Georgia; (2) Altitude Express, Inc. v. Zarda; and (3) R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC.

In Bostock, Clayton County, Georgia employed Gerald Bostock for ten years as a child welfare advocate. The County terminated Mr. Bostock’s employment after discovering he joined a gay recreational softball league. They terminated him for “conduct ‘unbecoming’ a county employee.” In Zarda, Altitude Express, Inc. fired Donald Zarda after he mentioned to a customer that he himself was gay. Finally, in R.G. & G.R. Harris Funeral Homes,  a funeral home terminated Aimee Stephens after she wrote a letter to them informing them that she planned to “live and work full-time as a woman.”

In a 6-3 opinion penned by Justice Neil Gorsuch, the Court found that in each of the above cases the plaintiffs properly made survivable claims of sex-based discrimination under Title VII of the Civil Rights Act. The Court held:

An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.

The Court also pointed out that when an employer treats an employee worse because of their sex, it is immaterial whether other factors contribute to that decision:

Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise, here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

For employers in Washington State, the Washington Law Against Discrimination (“WLAD”) found at Chapter 49.60 RCW already prohibits discrimination on the basis of sexual orientation and gender identity. So, this holding by the U.S. Supreme Court changes little regarding the current legal landscape of employment law in the State.

But the Supreme Court’s holding provides further definition on what is now also illegal under federal law and expands this protection to the states that did not have such protections for LGBTQ employees. It is also a reminder to all employers that they may want to review their workplace policies and confirm those existing policies prohibit such discrimination.

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Brian C. Nadler

Meet Brian

Brian Nadler focuses his practice on appeals and dispositive motion practice in state and federal court. His practice also involves assisting trial counsel in reviewing appellate strategy and preserving issues for appeal. He has experience briefing cases on a wide range of issues, working to interpret technical issues for a more generalist audience of judges. Brian has briefed cases in the state and federal courts of appeals. Brian has experienc...