James W. Hill

In a landmark decision on June 15, 2020, Bostock v. Clayton County,[1] the United States Supreme Court held that Title VII of the Civil Rights Act forbids employers from taking adverse action against employees on the basis of their sexual orientation or transgender status. This ruling will have an immediate and nationwide impact on U.S. employers, and clarifies that Title VII provides a federal cause of action for employment discrimination on the basis of an employee’s LGBT status. The Supreme Court’s 6-3 opinion turned on whether the rule in Title VII forbidding an employer from failing to hire, discharging, or otherwise discriminating against employees because of their sex also protects employees from being discharged based on their LGBT status.[2] The Court answered that question in the affirmative, explaining that “[i]f the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” In so holding, the Supreme Court resolved a disagreement in the United States Courts of Appeals regarding the application of Title VII to such claims. All three cases before the Court involved employees who had been discharged on the basis of their sexual orientation or transgender status. Applying the above rule, the Court found that it was impossible to discharge an employee on the basis of that employee’s sexuality or transgender status without also discriminating on the basis of the employee’s sex. The Court reasoned that an employer who discharges an employee upon learning of the employee’s sexuality or gender identification necessarily penalizes that employee for conduct or characteristics which the employer tolerates in employees of the opposite sex. Accordingly, discharging an employee based on the employee’s LGBT status constitutes impermissible sex-based discrimination under Title VII. Importantly, the Court held that it does not matter whether “other factors” played a role in the employer’s decision, or even whether the employee’s sexual orientation or transgender status was the primary reason for the discharge. Likewise, it is not a defense that the employer treats men and women comparably as groups. So long as the employee’s LGBT status was one of the reasons for their discharge, the employer may face Title VII liability. The Court stopped short, however, of determining whether other types of policies or practices involving LGBT employees rise to the level of impermissible sex-based discrimination under Title VII. The Court stated that it did not “purport to address bathrooms, locker rooms, or anything else of the kind,” leaving those issues for another day. Likewise, the Court did not opine on whether an employer can successfully argue that its right to religious liberty under the United States Constitution provides a defense to Title VII claims brought by LGBT employees. Rather, the only question the Court considered was “whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’” Accordingly, employers should expect these other questions to be the subject of future decisions by the federal courts. For now—in light of Bostock—all U.S. employers should ensure their policies and practices comply with the Court’s decision. California employers may already be familiar with these requirements in light of rules established by the state’s Fair Employment and Housing Act forbidding discrimination on the basis of sexual orientation, gender identification, and gender expression. But for employers operating in numerous other states which do not provide similar protections, Bostock is a significant change. Greenberg Glusker can assist with establishing compliance and training programs regarding the prevention of workplace discrimination and harassment on the basis of sexual orientation and transgender status. We encourage employers to contact our attorneys with any questions they may have regarding this recent decision.  [1] 590 U.S. ___ (2020). [2] 42 U.S.C. § 2000e-2.