Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 15, 2020, the U.S. Supreme Court published its opinion resolving three cases, Zarda v. Altitude Express, Inc., Bostock v. Clayton County, and EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc. The question before the Court was whether Title VII of the Civil Rights Act of 1964, prohibiting discrimination in the workplace “because of sex,” encompasses discrimination based on sexual orientation and gender identity. The Court held it does, finding “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Summary of the Underlying Cases
Zarda v. Altitude Express, Inc.
Donald Zarda was a skydiving instructor for Altitude Express, Inc. Mr. Zarda was responsible in part for “tandem skydives,” during which he and a client would be strapped together in very close physical proximity for the duration of a skydive. To assuage female clients who were concerned about being strapped to a man during a tandem skydive, Mr. Zarda would routinely inform them of his sexual orientation. In June 2010, several days after Mr. Zarda informed a female client about his sexual orientation, Altitude Express terminated Mr. Zarda’s employment. In response to Mr. Zarda’s application for unemployment benefits, Altitude Express responded his employment was terminated because he shared inappropriate information about his personal life with a client.
Mr. Zarda filed suit in federal court for alleged violations of Title VII’s prohibition on discrimination “because of sex” and New York’s prohibition on discrimination because of sexual orientation. The district court denied Attitude Express’ motion for summary judgment on the New York claim but granted it on the Title VII claim. In denying summary judgment, the district court reasoned the Second Circuit's decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) precluded Title VII sex stereotyping claims predicated on sexual orientation. On appeal, the Second Circuit, sitting en banc, overruled Simonton and held “sexual orientation discrimination is properly understood as a subset of actions taken on the basis of sex” and allowed Mr. Zarda’s Title VII case to proceed.
Bostock v. Clayton County
Gerald Bostock, a gay man, worked for Clayton County as a Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County, Georgia. In 2013, Mr. Bostock began playing in a recreational gay softball league. Thereafter, decision-makers at the County allegedly criticized Mr. Bostock’s participation in the softball league and his sexual orientation. Mr. Bostock also claimed the County audited the funds he managed without basis. One month later, the County terminated Mr. Bostock’s employment for conduct unbecoming of a County employee.
Mr. Bostock filed suit in federal court asserting his employment was terminated because of his sexual orientation in violation of Title VII. The magistrate judge granted the County’s motion to dismiss, reasoning Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) held Title VII did not prohibit discrimination based on sexual orientation. While Mr. Bostock objected to the magistrate judge’s ruling, the district court deferred consideration until the Eleventh Circuit issued a decision in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), which held Blum remained binding precedent. The district court then dismissed Mr. Bostock’s complaint. Mr. Bostock appealed the ruling to the Eleventh Circuit, which affirmed the district court’s dismissal of his complaint.
EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc.
Aimee Stephens worked as a funeral director and embalmer for R.G & G.R. Harris Funeral Homes (“Harris Funeral Homes”). Ms. Stephens was assigned male at birth. After seeking counseling for four years, Ms. Stephens came out at work by sending a letter to Harris Funeral Homes about her sex reassignment surgery informing them she would be coming to work as her true authentic self. Two weeks later, Ms. Stephens’s employment was terminated.
Ms. Stephens filed a charge of discrimination with the Equal Employment Opportunity Commission, and the EEOC filed a complaint on her behalf in federal court, alleging Harris Funeral Homes violated Title VII by terminating her employment because she is transgender and she did not conform to sex stereotypes. At the outset, the district court dismissed Ms. Stephen’s claim based on her being transgender, but it permitted the case to proceed under a theory of sex stereotyping. The district court then granted summary judgment in favor of Harris Funeral Homes under the Religious Freedom Restoration Act’s exemption from Title VII. The EEOC appealed the decision, and Ms. Stephens also intervened on appeal. The Sixth Circuit reversed, holding Harris Funeral Homes violated Title VII by firing Ms. Stephens because of her transgender status and sex stereotyping. The Sixth Circuit also rejected the Religious Freedom Restoration Act defense.
Supreme Court Considers All Three Cases
The Supreme Court consolidated these three cases and heard oral argument on October 8, 2019.
The employees relied on the text of the statute and argued discrimination based on sexual orientation and gender identity was discrimination “because of sex.” Mr. Zarda and Mr. Bostock argued sex is inherent in sexual orientation – one cannot be considered without the other. They further argued discrimination based on sexual orientation constitutes associational sex discrimination, i.e., it is discrimination on the basis of an employee’s association with another person of the same sex. Ms. Stephens argued sex was the “but for” cause of her termination – Harris Funeral Homes would not have fired her for living openly as a woman if she had been assigned female at birth.
The employees also argued discrimination based on sexual orientation and gender identity constitutes impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In other words, they failed to conform to their employer’s sex-based generalizations—men should only be attracted to women (or vice versa) or people assigned a sex at birth will identify, act, dress, and appear as that sex throughout the entirety of their lives.
Meanwhile, the employers argued Title VII prohibits an employer from treating one sex less favorably than the other, and the original meaning of sex under Title VII was male and female, not sexual orientation or transgender status. They further argued that Congress would have passed laws prohibiting discrimination on the basis of sexual orientation or gender identity if it meant to prohibit it, as “Congress does not hide elephants in mouseholes.” The employers also suggested that because the policies at issue have the same adverse consequences for men and women, a stricter causation test than Title VII’s “but for” causation standard should apply.
The High Court’s Ruling
On June 15, 2020, in a 6 to 3 ruling, the Supreme Court held Title VII prohibits discrimination based on sexual orientation and gender identity. The High Court reasoned, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court explained that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Accordingly, the Court concluded, “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
In reaching this conclusion, the Court rejected the argument that “sex” is limited to the biological distinctions between men and women. Looking to the text of Title VII, the Court reasoned that the statute prohibits employers from discriminating against the individual “because of sex,” which encompasses actions taken by employers against employees who display attributes that it would tolerate if they were exhibited by an individual of the other sex. The Court explained that Title VII is written in “starkly broad terms” and, as a result, this “elephant has never hidden in a mousehole; it has been standing before us all along.”
Employers Must Take Action to Comply with Federal Law
When digesting a federal ruling like this it is important to acknowledge that many state and local laws provide protections for sexual orientation and gender identity. Currently, 23 states and the District of Columbia provide statutory protections for sexual orientation and 22 states do so for gender identity.1 A number of cities and counties across the country have also enacted local ordinances providing employment law protections on these bases. Notably, many of these state and local laws cover small employers that are not covered under Title VII.2
As a result, the impact of this decision will be largely felt across the 27 states that do not currently have any state law protections for private individuals on the basis of their sexual orientation and gender identity in the workplace.3
Employers Should Review and Revise Their Employee Handbooks
Employers in states that do not have state or local laws prohibiting discrimination based on sexual orientation and gender identity in the workplace, must now review their employee handbook to ensure it complies with the Supreme Court’s ruling. These employers should consider revising their training programs accordingly. Moreover, in workplaces where employees may not be familiar with issues related to gender identity and expression, employers may wish to provide additional training and education to their employees.
The Court recognized that its decision does not provide practical guidance to employers on a number of potential issues that may arise in the workplace, including issues surrounding sex-specific changing facilities and restrooms. We expect these issues will continue to be litigated. The Supreme Court’s decision also left open the question of what the interplay is between Title VII and the Religious Freedom Restoration Act of 1993 and other protections for religious beliefs. As a result, we can expect to see future cases seeking to clarify the scope of this decision. The Court’s ruling also may renew interest in adopting a federal law like the Equality Act, H.R. 5, to provide greater protections for individuals on the basis of their sexual orientation and gender identity or expression.
1 Wisconsin’s nondiscrimination laws protect on the basis of sexual orientation; these remaining states’ laws provide the same protection and include protections for gender expression in the workplace: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, and Washington.
2 Generally, Title VII applies to employers with 15 or more employees who worked for the employer for at least 20 calendar weeks in the current or prior year.
3 Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, West Virginia, and Wyoming.