By Logan C. Stone

Amid the Coronavirus pandemic, social unrest, and the country's reopening, on June 15, 2020, the Supreme Court of the United States handed down a historic decision. 

The Court's decision in Bostock v. Clayton County, Georgia concerned Title VII of the Civil Rights Act of 1964 (the "Act"). The Act is a landmark civil rights and labor law codified in Title 42, Chapter 21 of the United States Code that prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a)(1).

In Bostock, the Court considered whether the definition of "sex" found in Title VII included discrimination based upon a person being homosexual or transgender. In a 6-3 decision, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects homosexual and transgender workers from such workplace discrimination.

The facts of the case came to the Court through three separate cases that were all argued before the Court in October 2019. The named Plaintiff, Gerald Bostock, worked for Clayton County, Georgia, as a child welfare advocate. After participating in a homosexual softball league, Gerald Bostock was fired for conduct "unbecoming" of a county employee. Another plaintiff, Donald Zarda, was fired at Altitude Express in New York state after mentioning he was gay. A third plaintiff, Aimee Stephens, who presented as a male when hired, was fired from R.G. & G.R. Harris Funeral Homes in Garden City, Michigan after she expressed her desire to "live and work full-time as a woman" following her gender dysphoria diagnosis.

Mr. Bostock and Mr. Zarda filed individual lawsuits in federal court wherein each alleged they were fired for being gay, which violated Title VII. In Mr. Bostock's case, the U.S. Court of Appeals for the 11th Circuit ruled that there was no Title VII violation, while the U.S. Court of Appeals for the 2nd Circuit agreed with Mr. Zarda that Title VII bars discrimination based on sexual orientation. In Ms. Stephens' case, the district court sided with the funeral home and ruled that Title VII does not protect transgender employees from discrimination, but the U.S. Court of Appeals for the 6th Circuit reversed the district court's decision.

Justice Gorsuch wrote for the majority and was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Relying on a textualist approach, Justice Gorsuch reasoned that "[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex . . . [a]n individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." 

Justice Gorsuch concluded by holding that in "Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law."

The Bostock decision is momentous because fewer than twenty-five states previously banned employment discrimination based on gender identity or sexual orientation. It remains to be seen how the Court's decision impacts Title VII discrimination claims and future protections.

In the meantime, however, it is important for both employers and employees to understand the import of this decision. In addition to homosexual and transgender employees now clearly having rights to pursue discrimination claims, employers need to take steps to prevent such claims. Employers will need to update employment handbooks to address the Bostock decision to ensure that their policies appropriately address homosexual and transgender persons in the work environment and that human resources departments appropriately handle claims of discrimination by these now recognized protected classes.

​Logan C. Stone is an associate attorney with Flint, Connolly & Walker, LLP currently representing clients on various civil matters and associated litigation. The attorneys at Flint, Connolly & Walker, LLP have the experience and knowledge to protect your interests whether in an adverse or transactional setting.