In an important civil rights development, the U.S. Supreme Court today issued a 6-3 opinion in Bostock v. Clayton County, Georgia, holding that gay and transgender employees are protected under the prohibition against workplace sex discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”).  Justice Gorsuch delivered the majority opinion, joined by Justices Roberts, Ginsberg, Breyer, Sotomayor, and Kagan.  Dissenting opinions were filed by Justices Alito (joined by Thomas) and Kavanaugh.

The ruling resolves three cases in which employers fired long-time employees after the employees revealed they were gay or transgender, allegedly for no reason other than the fact of their gay or transgender status.  Gerald Bostock was fired from his job with Clayton County, Georgia, for conduct “unbecoming” a county employee after he began participating in a gay recreational softball league.  Donald Zarda was fired by Altitude Express just days after he mentioned he was gay.  And Aimee Stephens was fired by R. G. & G. R. Harris Funeral Homes when she notified the employer that she was transitioning from male to female and planned to “live and work full-time as a woman.”

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or discharge any individual, or otherwise to discrimination against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.”  The majority opinion held that the term “sex” under Title VII extends to sexual orientation and gender identity, even though Congress might not have anticipated this result when it drafted the statute, because an 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.  The Court explained that “homosexuality and transgender status are inextricably bound up with sex” and thus “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  Furthermore, demonstrating that the employer treats males and females comparably as groups is not a defense: “[A]n employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.”

The Court also explained that under Title VII, if an employee’s sex was a but-for cause of a challenged employment decision that is sufficient to trigger the statute’s protections, even if the employer claims that another factor also contributed to the employment decision.  When an employer takes an adverse employment action because an employee is homosexual or transgender, there may be two contributing factors–both the individual’s sex and something else (the sex the individual is attracted to or the gender the individual identifies with).  “But Title VII doesn’t care,” said the Court.  “If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”

The Supreme Court indicated that it was not deciding whether Title VII prohibits sex-segregated bathrooms and locker rooms.  The Court also acknowledged that Title VII may intersect with religious liberties, but declined to rule on the issue, noting that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”

The Bostock decision is a major shift in workplace law.  As a result of the ruling, it is now clear that Title VII prohibits discrimination and harassment based on sexual orientation and gender identity, and protects gay and transgender employees and job applicants.  While 22 states and many local governments already have laws barring workplace discrimination on the basis of sexual orientation or gender identity, the Supreme Court’s opinion signals that all employers should examine their workplace cultures and adjust policies and practices to avoid sexual orientation and gender identity discrimination.  Additionally, employers, if they are not already doing so, should consider providing training for managers and employees on protections for gay and transgender workers.