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By: Ryan Greenspan
In perhaps the most significant and far-reaching employment-law decision in decades, the U.S. Supreme Court ruled on June 15, 2020 that the 1964 Civil Rights Act’s prohibition of discrimination “because of… sex” necessarily includes discrimination based on one’s sexual orientation or gender identity. This decision resolves a circuit split that had developed over the last three years, which meant that the question of whether sexual-orientation or gender-identity discrimination was unlawful depended on the federal circuit in which the case arose. In some circuits it was unlawful, in others it was not. Now there is uniformity on this issue throughout the country.
Before the Court were three cases from three different federal circuits: Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission. The plaintiffs in Bostock and Zarda alleged they had been terminated because of their sexual orientation, while the plaintiff in Harris Funeral Homes alleged she had been terminated due to her gender identity.
The Supreme Court’s decision largely turned on the phrase “because of… sex” in the statute. As Justice Neil Gorsuch wrote in the majority opinion:
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. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
What does this mean for employers? Companies, including government agencies, that discriminate against a worker for being gay or transgender now face the same exposure as if they discriminate against an employee on the basis of race, color, religion, sex, or national origin. These remedies can include back pay, attorney’s fees, and compensatory and punitive damages up to the statutory caps from $50,000 to $300,000, depending on the size of the employer. While 21 states and the District of Columbia already had such protections in place for gay and transgender employees, the Bostock decision adds an extra layer of protection at the federal level, which applies to all states. Employers should adjust their policies accordingly.
It bears noting the 1964 Civil Rights Act applies only to employers with 15 or more employees, so smaller employers are not affected by this ruling (or the Civil Rights Act in general). It is also important to note that, because this decision is interpreting a statute, Congress has the authority to revise or amend the existing law, though there is no indication that it intends to do so.
It will be interesting to see how the Supreme Court’s decision may affect other laws. As Justice Samuel Alito noted in his dissent, over 100 other federal statutes also prohibit discrimination because of sex. If the very concept of sex discrimination necessarily includes discrimination because of sexual orientation or gender identity, as the majority opinion reasons, then these other laws, too, may well be impacted.
If you have questions or would like more information on this decision and its impact on the law, please contact Ryan Greenspan at [email protected].