Labor & Employment Developments Blog

Yesterday, the U.S. Supreme Court issued its decision in Bostock v. Clayton County, Georgia, a new landmark ruling clarifying that Title VII of the Civil Rights Act of 1964—which prohibits workplace discrimination—applies to discrimination based upon sexual orientation and gender identity.  Title VII specifies that it is unlawful for employers to discriminate against someone based on race, color, religion, sex, or national origin.  Although sexual orientation and gender identity are not specifically mentioned in the Act, the Court determined that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.  Writing for the 6-3 majority, Justice Neil Gorsuch wrote:

“[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.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 

The breadth of Title VII’s protections have been a hotly debated topic, as several lower courts held that applying Title VII protections to homosexual and transgender individuals would require an act of Congress.  Nevertheless, the historical significance of this ruling was not lost on the dissent.  Justice Brett Kavanagh, who along with Justice Clarence Thomas and Justice Samuel Alito dissented, took a moment to acknowledge the meaning of this ruling: 

“Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court's judgement"

Many state and local governments had previously expanded workplace anti-discrimination protections to specifically include sexual orientation and gender identity.  With this new ruling, those protections are now guaranteed across the nation.  If you have any questions regarding this ruling or how workplace discrimination laws impact your business, please contact a member of KMK Law’s Labor and Employment Group.