Supreme Court Holds That
Employers Cannot Discriminate Against LGBTQ Workers Under Title VII
The majority opinion pointed to the plain language of Title VII, which makes it “unlawful ... for an employer to fail or refuse to hire or to discharge an individual, or otherwise to discriminate against an individual ... because of such individual’s race, color, religion, sex, or national origin.”
In a monumental
decision issued June 15, 2020, the
U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964
prohibits workplace discrimination on the basis of an employee’s sexual
orientation or gender identity.
Title VII has long prohibited workplace discrimination on the basis of sex.
In a 6-3 decision authored by Justice Neil Gorsuch (with Chief Justice
Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan joining), Justice
Gorsuch focused on the plain language of Title VII and found that Title
VII’s prohibition on discrimination against individuals “because of sex”
necessarily includes gay and transgender individuals.
The majority opinion pointed to the plain language of Title VII, which makes
it “unlawful ... for an employer to fail or refuse to hire or to discharge
an individual, or otherwise to discriminate against an individual ...
because of such individual’s race, color, religion, sex, or national
The Court’s decision turned on the phrase “because of sex” and whether this
phrase covered gay and transgender workers. Gorsuch answered this question
in the affirmative by explaining that, when an employer fires an employee
“for being homosexual or transgender,” that employer “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.”
Notably, Justice Gorsuch made it clear that the Court was deciding only
Title VII sex discrimination issues and that any issues regarding Title VII
sex discrimination and its conflict with religious freedom issues, such as
the Religious Freedom Restoration Act, are “questions for future cases.”
This will be an area to watch going forward.
Justice Alito authored a scathing dissent, joined by Justice Thomas; Justice
Kavanaugh also wrote a separate dissent. Justice Alito’s 100-plus-page
dissent primarily quarreled with the majority’s decision in taking a
position that was beyond the original intended scope of Title VII.
The case arose from a consolidation of three cases all argued last fall. In
one case, the Second Circuit Court of Appeals held that Title VII did indeed
prohibit discrimination on the basis of sexual orientation, while the
Eleventh Circuit reached a contrary conclusion. The third lawsuit involved a
transgender employee who alleged she was fired because of her sexual
identity, and the Sixth Circuit Court of Appeals held that Title VII
protects transgender employees.
(The Supreme Court case is styled as Bostock v. Clayton County, No. 17-1618,
---S.Ct.----, 2020 WL 3146686.)
What Employers Need to Know
For employers, the Bostock decision now makes it crystal clear that
discrimination against an employee for that employee’s sexual orientation or
gender identity is a violation of Title VII’s prohibition on sexual
Unlike many states with existing laws protecting against sexual orientation
and gender identity discrimination in employment, Arizona lacks these
specific protections under its current civil rights laws. See
41-1463(B). Therefore, we recommend employers work with their attorneys and
local counsel to review employee handbooks and policies to ensure they
reflect the new change in the law.