By Eve R. Keller, Esq. of Folkman Law Offices, P.C.
The U.S. Supreme Court handed down a landmark decision, ruling that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation and gender identity and expression. In a 6-3 ruling of a consolidated group of cases from around the United States styled Bostock v. Clayton County, the Court found that an employer who fires an employee because he or she is gay or transgender necessarily discriminates against the employee, in part because of his or her sex, in violation of Title VII. Two Republican appointees, Chief Justice John Roberts and Justice Neil Gorsuch, joined the Court’s four Democratic appointees in the majority, with Justice Gorsuch authoring the Opinion of the Court. Justice Samuel Alito (joined by Justices Clarence Thomas and Brett Kavanaugh) and Justice Kavanaugh wrote dissenting opinions.
Bostock is a case of statutory interpretation—namely, how to read Title VII’s mandate 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 with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e–2(a)(1). The linchpin of this groundbreaking decision was whether “because of sex” protects an employee from being fired simply for being gay or transgender.
The majority rejected the argument advanced by the dissent that, in 1964, when the statute was passed, Congress did not intend to extend protections to gay and transgender employees. Rather, the majority relied upon the ordinary public meaning of the language contained within Title VII— “discriminate because of sex”—in reaching its holding. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” stated Justice Gorsuch for the majority. “Only the written word is the law, and all persons are entitled to its benefit.”
The Court opined that an employer who fires an employee for being gay or transgender fires that person for traits or actions it would not have questioned in members of a different sex. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids” the Court stated. In applying the law as written, Justice Gorsuch asserted, “an employer violates Title VII when it intentionally fires an individual employee based in part on sex”.
At the end of the decision, Justice Gorsuch briefly discussed the potential argument that in complying with Title VII when it comes to gay and transgender employees, some employers may be required to violate their religious convictions. As set forth in the decision, the Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. 42 U.S.C. §2000bb-1. However, none of the employers in this case argued that compliance with Title VII infringed their own religious liberties. Therefore, this argument was not before the Court for consideration, and only time will tell how potential “religious opt-out” cases will be treated by the courts moving forward.
Before yesterday, lower courts disagreed over whether the term “sex” in Title VII included sexual orientation and gender identity. Bostock decisively resolved this disagreement. For the majority of states that do not have LGBTQ protections in their state and local employment discrimination laws this case will afford so many an avenue to seek redress for workplace bias.
As a member of the LGBTQ community, I feel a sense of elation over the Court’s ruling. So many LGBTQ people have just won a right of recourse against their employers for discriminatory practices. We represent a significant portion of the workforce and the impact of this decision is not to be understated.
