Just days after the Trump administration formally rolled back policies that protected LGBTQ+ patients from discrimination, the Supreme Court issued an opinion clearly stating that Title VII protects homosexual or transgender people from discrimination in the workplace. In a 6-3 opinion in Bostock v. Clayton County, the Court announced, “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.”
Bostock considered three different cases stemming from discriminatory terminations. The first plaintiff, Gerald Bostock, was fired from his job after he participated in a gay recreational softball league. Donald Zarda, who worked as a skydiving instructor, was fired just days after mentioning he was gay. Finally, Aimee Stephens was fired from her position at a funeral home after informing her employers she would live and work full-time as a woman.
These three cases caused a circuit split between the Second, Sixth, and Eleventh Circuits. The Second and Sixth Circuits held that Title VII bars employers from firing employees because of their sexuality or transgender status. The Eleventh Circuit disagreed and held that Title VII does not prohibit terminations on the same basis.
In taking up this case, the Supreme Court gave a strong voice to LGBTQ+ rights and established protections under Title VII for countless people who live in fear of losing their jobs simply because of who they are. Title VII prohibits employment discrimination “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To begin with, the Court clarified the standard for determining discrimination under this statute. Though the employers argued for a higher standard, the Court clearly explained that the language in the statute (“because of”) creates a but-for causation standard. Importantly, the Court noted that, “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of the decision, that is enough to trigger the law.” Establishing the but-for standard was essential to keep employers from raising the bar to prove liability; it also keeps the standard consistent across Title VII.
The Court continued to describe how, essentially, any employment decision that considered sexuality or gender identity necessarily considered sex and, because it considered sex, it could not pass Title VII’s prohibition on discrimination because of sex. Certainly, firing a man who is attracted to men necessarily considers that the person is a man; a woman attracted to men would not have been fired by the employers here. Though the Court uses “sex” to describe biological anatomy at birth, the Court still recognizes that a decision to terminate a woman who was designated “male” at birth necessarily considers her sex and, again, fails to pass Title VII requirements.
The importance of this decision cannot be emphasized enough. Across the country, countless people work and live in fear for being attacked or fired simply for who they are. As of April 15, 2020, 22 states and Washington D.C. prohibited discrimination based on sexual orientation and gender identity. One state prohibited discrimination based on sexual orientation alone. Six states prohibited discrimination against public employees based on both sexual orientation and gender identity, and four states prohibited discrimination against public employed based on sexual orientation alone. This decision protects the vulnerable and recognizes the history of their struggles. Less than half of the states in this country protected its LGBTQ+ citizens, and seventeen states had no protections at all. The Supreme Court has not said “Happy Pride Month” this effectively since Obergefell.