Soon the name Bostock will join those of Brown (v. Board of Education of Topeka, Kansas), Miranda (v. Arizona) and Obergefell (v. Hodges) in the annals of US Supreme Court history as the Court on June 15, 2020 issued its decision in the case of Bostock v. Clayton County, Georgia. The court decided in an opinion incorporating a trio of cases asking whether Title VII prohibits employment discrimination based on lesbian, gay, bisexual and transgender (LGBT) status.[1] The Court concluded in a 6-3 opinion that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
Justice Gorsuch authored the majority opinion stating that “An individual’s homosexuality or transgender status is not relevant to employment decisions.” He further declared that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
There was essentially no dispute in these cases that the individual plaintiffs were terminated from employment due to their sexuality or transgender status. The responding defendants took the position that Title VII’s reference to sex was specific to gender and did not incorporate sexuality in its definition. The majority of the Court disagreed concluding that an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. The Court stated its decision in plain language: “An individual’s homosexuality or transgender status is not relevant to employment decisions.” And to make them relevant runs afoul of Title VII protection against discrimination against individuals on the basis of sex.
Much will be written about this pivotal decision: whether the Court was engaged in impermissible legislation from the bench, whether it was doing what it deemed fair and right rather than legal, or whether it was simply interpreting the plain meaning of the Civil Rights Act’s protection. But make no mistake, this is a pivotal decision which sets a remarkable and perhaps unexpected tone for the current iteration of the Roberts Court.
[1] Two cases (Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia) addressed workplace protections based on sexual orientation, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC considered employment rights based on gender identity.