June 15, 2020

On June 15, 2020,  the U.S. Supreme Court issued its Opinion on Bostock v Georgia, Zarda v Altitude, and Stephens v R.G. & G. R. Harris Funeral Home.  The Court, in a 6 to 3 opinion, found that an employer who fires an individual merely for be­ing gay or transgender violates the protections offered under Title VII of the Civil Rights Act of 1964 .

All three cases ruled upon in this landmark decision involved the termination of an employee based on that employee’s LGBTQ distinctions.  Specifically, Clayton County, Georgia terminated the employment of Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. Finally, R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.”

Each employee sued, alleging sex discrimination under Title VII. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.

In its 37 page majority Opinion, written by Justice Gorsuch, and joined by Justices Roberts, Breyer, Ginsburg, Kagan and Sotomayor, the Court examined the ordinary meaning of Title VII’s language at the time the law was adopted and the clear intention of Title VII that “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex.”  The majority agreed that LGBTQ status is a distinct concept from sex. However, just as sexual harassment and motherhood discrimination are within the meaning of sex in Title VII, so are homosexuality and transgender status

Ultimately, the majority of the Court found as follows:

Ours is a so­ciety of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expecta­tions. In Title VII, Congress adopted broad language mak­ing it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for be­ing gay or transgender defies the law.

Justices Alito, Kavanaugh and Thomas dissented finding that that neither sexual orientation nor gender identity appear on the list of protected classifications under Title VII.

It should be noted that the Court’s majority opinion specifically recognized that no First Amendment- free exercise cases were considered as part of this opinion. Specifically, the Court stated “So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent to this Court that Compliance with Title VII will infringe upon their own religious liberties in any way.”

The full opinion of the Court can be found on the Court’s website at https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Questions? Feel free to contact an attorney in our employment law group.