The U.S. Supreme Court (SCOTUS) held today that the ban on sex discrimination in the federal employment law, Title VII of the Civil Rights Act of 1964, covers employment discrimination based on sexual orientation or transgender identity. Ruling in three cases from around the country, Bostock v. Clayton County, the Court found that an employer who fires an employee because he or she is homosexual or transgender necessarily discriminates against the employee, in part because of his or her sex, in violation of Title VII. In other words, an employer who fires a gay man because he is gay, does so, in part, because he is a man who is sexually attracted to other men; and an employer who fires a transgender woman, does so at least in part because she does not exhibit some of the traditional characteristics associated with women.
The decision came as a surprise to many SCOTUS watchers, with two Republican appointees, Chief Justice John Roberts and Justice Neil Gorsuch, joining the Court’s four Democratic appointees in the majority. The decision drew two dissents, one authored by Justice Samuel Alito (and joined by Justices Clarence Thomas and Brett Kavanaugh) and a separate dissent by Justice Kavanaugh. In his opinion for the majority, Justice Gorsuch, a Trump appointee, rejected the argument advanced by the dissents that, in 1964, when the statute was passed, Congress would not have thought it was extending protections to gay and transgender persons. The decision, Justice Gorsuch, is grounded in the plain language of the statute and the Court’s longstanding precedent, which extends Title VII protections to situations where the employer discriminated based on sex, even if the decision was based on another factor as well. It is the Court’s job to apply the law as it was written, Justice Gorsuch concluded, not as specific legislators may have anticipated.
The Court’s decision will have significant consequences in the majority of states, which do not include anti-LGBT discrimination protections as part of their state-level employment discrimination laws. (For a map of state laws, see the Human Rights Campaign’s Map on Current State Employment Discrimination Laws, updated in April 2020).
For employers in New Jersey and New York, the Supreme Court’s decision may not have much practical effect as the New Jersey Law Against Discrimination (NJLAD) and New York State Human Rights Law prohibit employment discrimination based on sexual orientation and gender identity. The decision may, however, shift some litigation from state to federal courts.
For more information on this decision and the impact on your company’s anti-harassment policies in the workplace, please contact please contact John C. Petrella, Esq., Chair of the firm’s Employment Law & Litigation Practice Group, via email here or Lawrence Bluestone, Esq., Counsel, via email here.