Member Article

Unexpectedly siding with the liberal wing of the Court, Justice Neil Gorsuch penned a 6-3 decision in Bostock v. Clayton County, holding that Title VII’s prohibition on sex-based discrimination also covers sexual orientation and gender identity discrimination. The Court’s decision dealt a historic victory for proponents of expanding gay and trans protections for workers under Title VII of the Civil Rights Act of 1964. It is clear that this decision will have wide reaching implications for employers.

Before the Court were three consolidated cases where employees were terminated for being either homosexual or transgender. The key inquiry for the Court hinged on whether the language in Title VII which prohibited discrimination “because of sex” extended to sexual orientation and gender identity. In resolving this question, the Court focused on the meaning of “because of” instead of on the definition of “sex.” In other words, the Court held that the question was not whether the definition of “sex” includes sexual orientation and gender identity, but whether discrimination based on sexual orientation or gender identity are discrimination “because of” sex.

The Court based its decision on basic statutory interpretation. The Court reviewed the language of Title VII and used a dictionary from 1964 to determine what was meant by terms like “sex” and “because,” ultimately determining that the accepted definitions of those words prohibited an employer from taking action against an employee even “in part” because of their sex. The Court went on to reason that an employer that terminated a female employee for having a relationship with a female, but not a male employee for engaging in exactly the same conduct, engaged in obvious sex discrimination that was prohibited by law. Title VII’s language provides a “straight forward rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” Such a rule led the Court to the “equally simple and momentous” rule that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions. That is because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

In making its decision, the Court rejected any turn to legislative history or policy rationales, finding that the former was irrelevant in the face of clear statutory language, and the latter was outside the purview of the court system. As the Court wrote, “[w]hen the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is law, and all persons are entitled to its benefit.” Although the drafters of Title VII may not have meant to protect LGBT+ individuals, “to refuse enforcement…because the parties before us happened to be unpopular at the time of the law’s passage would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”

It is clear that this decision will have wide reaching implications for employers. Employers should review their anti-discrimination and anti-harassment policies to ensure that they are in compliance with this ruling. Further, employees may need to be trained on the new policies, and employers making adverse employment decisions must be wary of potential claims based upon LGBT+ discrimination claims. Employers are encouraged to contact a member of Dykema’s Labor and Employment Law Group with any questions.