Client Alerts

Supreme Court Declares Discrimination Against Gay and Transgender Individuals in the Workplace “Defies the Law”

Client Alerts | June 25, 2020 | Risk Management | Employment Litigation

On Monday, June 15, 2020, the Supreme Court of the United States handed down a monumental decision in Bostock v. Clayton County, Georgia, declaring that any employer who discriminates on the basis of sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964 which protects individuals in the workplace from discrimination based on sex.

Bostock offers important guidance for employers, perhaps foreshadowing a trend in this contentious area of individual rights and raises important takeaways to consider.


In three separate cases that were consolidated before the Supreme Court,1 long-term employees were terminated from their positions because they were gay or transgendered:

  1. After a decade in his role as a child welfare advocate in Georgia, Gerald Bostock joined a gay softball league. Soon after, Mr. Bostock was fired for “conduct ‘unbecoming[.]’”
  2. Similarly, Donald Zarda, a skydiving instructor in New York, was terminated within days of mentioning to his employer that he was gay.
  3. When Aimee Stephens began working at a funeral home in Michigan, she “presented as a male[,]” but later notified her employer that she intended to “live and work full-time as a woman[.]” Shortly thereafter, the funeral home terminated Ms. Stephens stating “this is not going to work out[.]”

All three employees filed suit in their respective districts under Title VII alleging unlawful discrimination on the basis of sex. On appeal, the Eleventh Circuit followed its own precedent and held that “[d]ischarge for homosexuality is not prohibited by Title VII[,]” resulting in a dismissal of Mr. Bostock’s case. Conversely, the Second Circuit found that “sexual orientation discrimination constitutes a form of discrimination because of . . . sex,” and allowed Mr. Zarda’s case to proceed. While a factually different matter, when addressing Ms. Stephen’s claims, the Sixth Circuit ruled in line with the Second Circuit and found that “discrimination on the basis of transgender and transitioning status violates Title VII.” The cases were subsequently consolidated and brought before the Supreme Court.

The “Clear” Meaning of Title VII Prevails

In a 6-3 decision, Justice Neil Gorsuch, writing for the Majority, stated:

“Today we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Majority’s decision boiled down to a literal textual interpretation, and despite the elaborate dissenting opinions which also purported to be literal textual interpretations of Title VII, the Majority stood firmly on its interpretation of the “clear” meaning of the statutory language.2 Title VII provides that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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” (emphasis added).

The Majority explicitly addressed the interpretation of the key terms in Title VII, and particularly focused on: “because of…sex” and “discriminate against.”

“Because of…sex”

While acknowledging that in 1964, the term “sex” referred to male or female, the Majority emphasized that the 1964 definition should not be the focus, but rather what Title VII says about sex, which is that discrimination cannot occur “because of” sex. This “because of” language translates to traditional “but-for” causation, simply meaning liability is incurred “whenever a particular outcome would not have happened ‘but for’ the purported cause.” The Majority invited the reader to “call the statute’s but-for test what you will[,]” including “expansive, legalistic” or as the dissent referred to it, “wooden or literal” but at the end of the day –  the but-for test “is the law.”

Significantly, the Majority reiterated various times that an employer cannot avoid liability simply by citing another motivating factor that contributed to the challenged employment decision, and as long as an employee’s sex is considered in the employment decision, Title VII is triggered.

“Discriminate against”

To “discriminate against” someone means to treat an individual worse than others that are similarly treated. Accordingly, in the context of Title VII, if an employer intentionally treats an individual differently as a result of conduct that the employer would tolerate in an individual of another sex, then the employer has intentionally discriminated against the individual in violation of Title VII. As an example, the Majority stated that if an employer fires a male employee for being attracted to men, but would employ a female employee attracted to men, then the employer is firing the male employee for traits or conduct it tolerates in women, demonstrating the “the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

As a result of the foregoing, the Majority found that the definitions and meanings of the key terms generate the following understanding: “for an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms – and that ‘should be the end of the analysis.’”


The Supreme Court’s June 15 decision, which extends workplace rights to millions of gay and transgender individuals in the United States, will undoubtedly have a profound and long-term impact on gay and transgender rights.

While New York State’s current employment laws have long-protected gay and transgender individuals from workplace discrimination, many other states do not have laws providing such protection. Accordingly, the states that currently do not provide any workplace protection to gay and transgender individuals will likely be most affected by the Bostock decision, and companies that are multi-state employers are urged to consult their employment counsel to ensure they are compliant with the newly defined federal law.

Next Steps

In the wake of Bostock, all employers, regardless of where they do business, should take appropriate steps to ensure compliance under Title VII. This includes, but is not limited to:

  • Reviewing, and updating, if necessary, their internal anti-discrimination policies to ensure that they address, and clearly prohibit, discrimination relating to gay and transgender rights.
  • Providing sensitivity training to managers and staff regarding this emerging, and now settled, area of employment law. Indeed, offhand remarks about sexual preferences or gender identity may now be actionable under federal law.

In the final analysis, the High Court’s holding in Bostock may also portend a doctrinal shift in civil rights in other areas beyond employment. Employers should anticipate that issues will undoubtedly arise, and cases will likely be brought, relating to gender-specific bathrooms and locker rooms, dress codes, medical treatments, insurance coverage and religious rights, just to name a few.

If you have any questions about the Supreme Court’s groundbreaking decision, discrimination claims or how to effectively protect against discrimination within the workplace, please reach out to the employment litigation team at Kleinberg Kaplan for assistance.

1 Bostock v. Clayton Cty. Bd. of Comm’rs, 723 Fed. Appx. 964, 964 (11th Cir. 2018); Zarda v. Altitude Express, Inc., 883 F.3d 100, 100 (2d Cir. 2018); EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 571 (6th Cir. 2018).

2 Despite Justice Gorsuch’s conclusion that the language in Title VII “clearly prohibits” discrimination on the basis of sexual orientation and gender identification, the Majority’s decision and the two dissenting opinions together with an elaborate appendix—each side claiming to adopt a pure textual construction of the statutory language, but reaching two entirely polarized conclusions—totaled more than 170 pages.