In the shadows of all that is going on in America today, a landmark decision was made by the country’s highest Court in Bostock v. Clayton County. Title VII of the Civil Rights Act of 1964 makes employment discrimination based on race, color, religion, sex, and national origin illegal. Earlier this week, the Supreme Court of the United States was tasked with ruling on the scope of Title VII and whether its protections extended to employees who are homosexual or transgender, and SCOTUS determined that they did.

The Basis for the Court’s Ruling in Favor of Title VII Homosexual and Transgender Protections

In a 6-3 decision, the Supreme Court sent a strong message that discrimination against homosexual and transgender employees in the workplace constitutes sex and/or gender discrimination that violates Title VII of the Civil Rights Act of 1964. Justice Neil M. Gorsuch crafted the majority opinion for the Court, and Justices Alito, Thomas, and Kavanaugh dissented. Among the votes in favor of this ruling were those of conservative Justice Gorsuch and Justice John G. Roberts Jr. This surprising ruling is a watershed decision for all LGBTQ rights.

During oral arguments, Gorsuch expressed that the words “because of sex” favored the plaintiff’s interpretation of the law, and that discrimination based on LGBTQ status inherently involved an employee’s sex or gender. The June 15, 2020, ruling arose out of three separate cases from the Eleventh, Sixth, and Second U.S. Courts of Appeals. Each of these Courts had cases involving an employee who was fired after their employer learned that they were homosexual or transgender. In all cases, the employee had been employed for quite some time, and there appeared to be no other reason for their termination. The Court determined that in these situations, discrimination as it relates to an employee being homosexual or transgender established discrimination based on “sex” that is protected under Title VII.

Without examining the statute’s legislative history, the Supreme Court determined that under Title VII makes it illegal to discriminate against an employee because they are transgender or homosexual. Employers who terminate or otherwise take adverse action against an employee because they are homosexual or transgender, and would not have done so if the employee was a member of the opposite sex, are now in violation of the law.

The dissenters expressed that the other Justices were modifying the law, not interpreting it. Justice Kavanaugh accused the majority opinion of rewriting history. Justice Alito voiced concern that the effects of this decision will be difficult to predict and extensive. He also said his colleagues did not consider how their ruling would affect housing, religious employers, or sports. Some states, such as Pennsylvania, say this ruling provides a more persuasive argument to provide advocacy, agency, and protection under the law for those who are faced with discrimination in housing, employment, and public accommodations.

Examples of Title VII Violations

As supporting examples, the Court described the following situations:

An employer has two employees that are both attracted to males. In all other ways, the employees are the same, but one is a man, and one is a woman. The employer decides to fire the male because of his attraction to men but not the woman, even though she is also attracted to men. This employer is accepting of a trait in one employee and not an identical trait in the other employee of the opposite sex.

If an employer fires a transgender employee who identified as a male at birth but now identifies with the female gender, they are also discriminating against the fired employee if the following conditions exist:

• An identical employee was retained that identified as female at birth
• The employer intentionally fired the employee who identified as a male at birth  

The employee who was fired was discriminated against for having the same traits or characteristics that the retained employee has. An employment standard must apply across the board when it comes to firing or taking action against employees for whom they are attracted to or what gender they identify with. Otherwise, it is discrimination.

The Supreme Court determined that a statutory violation takes place when an employer would have made a different decision if the employee’s sex or gender were different. Even if the employer cites additional reasons for firing the homosexual or transgender employee, if the plaintiff’s sex was one of them, it is enough to activate the law.

Addressing Arguments Against Title VII Protection for Homosexual and Transgender Employees

Arguments made against the Supreme Court’s ruling included that discrimination on the basis of sex does not occur if all homosexual or transgender men are treated identically to all homosexual and transgender women. Under the same argument, opponents of the ruling highlighted that Title VII deals with discrimination on an individual basis and not a group basis.

To that argument, the decision points out that Title VII’s plain language and previous precedents do not allow an employer to treat men and women identically as a whole gender. Firing all lesbians and transgender employees as well as all gay men under equal standards does not release employers from liability. Instead, it increases their liability.

At the same time, the Court concedes that their decision in this matter probably was not something the Title VII drafters had imagined. However, they believe that the law should not be ignored or overlooked in situations the drafters could not have anticipated. The Court compared this discrimination matter to “an elephant that cannot be hidden in a mouse hole.” Sex discrimination in the workplace is one of the significant pillars in federal civil rights legislation.

The Future of Title VII

The Court was also quick to point out that their ruling in this matter is narrow. Therefore, it does not address or set a precedent for other issues under Title VII that will be addressed in the future. Issues the Court Justices specifically mentioned include:

• The legality of sex-segregated bathrooms or locker rooms
• Whether dress codes based on gender are legal
• The viability of any potential religious liberty defenses under the Religious Freedom Restoration Act of 1993 (RFRA)

What Actions Do Employers Need to Take Now?

Employers should take care to update employee handbooks and other employment-related policies and publications. These updates need to include applicable non-discrimination policies that extend to and ensure the protection LGBTQ employees or applicants.