This morning, the United States Supreme Court issued an opinion in the case of Bostock v. Clayton County, Georgia, No. 17-1618.  The Bostock opinion encompassed three cases addressing the same issue; whether an employer may fire an employee simply for being homosexual or transgender.  In a 6-3 opinion authored by Justice Neil Gorsuch, the Court emphatically answered no to this question.

The facts of the three cases were not in dispute, all of the cases involved a long-time employee who was fired from their job shortly after the employee revealed that they were homosexual or transgender, and allegedly for no reason other than their status as a homosexual or transgender individual.  All of the affected employees brought suit under Title VII of the Civil Rights Act of 1964, which outlaws workplace discrimination on the basis of race, color, religion, sex, or national origin, alleging that they were discriminated against on the basis of sex.  In one of the cases, the United States Court of Appeals for the Eleventh Circuit held that Title VII did not prohibit employers from firing employees for being gay and dismissed the plaintiff’s lawsuit.  In two of the cases, the Second and Sixth Circuit Courts held that Title VII prohibited employment discrimination based on an individual’s sexual orientation.

Justice Gorsuch’s opinion creates a clear, bright-line rule prohibiting employment discrimination based on an individual’s homosexual or transgender status.  In clear and concise language, Justice Gorsuch explains the rationale behind the Court’s decision.

The statute’s message for our cases is equally simple and momentous: 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.  Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as female.  If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.  Again, the individual employee’s sex plays an unmistakable an impermissible role in the discharge decision.

Justice Gorsuch distinguishes such a decision from those based on factors such as tardiness or incompetence.  As Justice Gorsuch points out, Title VII does not protect a female employee who is fired for those reasons, so long as the employer would have fired a male employee for the same reasons.  However, the Court’s opinion held that “homosexuality and transgender status are inextricably bound up with sex…because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.  It is important to note that under Title VII, it is irrelevant that additional causal factors beyond the employee’s homosexual or transgender status are present, “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.”

The Court’s decision expands the interpretation of Title VII, and is particularly important in states such as Pennsylvania, which do not yet have a statewide law prohibiting employment discrimination based on an individual’s homosexual or transgender status.  If your entity has questions as to its obligations under this new rule, our attorneys will be able to guide you and ensure that you are complying with all aspects of the law.

John H. Prorok
John Prorok

John Prorok possesses an invaluable understanding of privately held business owners’ needs in business planning, corporate formation, and transactions. He frequently speaks and counsels emerging and start‐up enterprises, offering insightful legal strategies toward success.