15 June 2020

Supreme Court Rules that Title VII Protects Employees from Discrimination on the Basis of Sexual Orientation and Transgender Status

On June 15, 2020, the United States Supreme Court issued a landmark ruling and held that an employer who fires an employee merely for being homosexual or transgender violates Title VII.  Justice Neil Gorsuch wrote the Court’s majority opinion, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined.  Justices Alito, Thomas, and Kavanaugh dissented.

The Court’s opinion is long and dense – the majority opinion and two dissenting opinions total 172 pages.  The long and short of it is this: if you are an employer that’s covered by Title VII, you must treat sexual orientation and transgender status just like the protected characteristics (race, color, religion, sex, and national origin) specifically identified in the statute.  Here’s a brief overview of how the Court reached that conclusion:

The case, Bostock v. Clayton County, is actually three consolidated cases – one from Georgia, New York, and Detroit.  In each case, an employer fired an employee simply because he or she was homosexual or transgender.  In the case from Detroit, R.G. & G.R. Harris Funeral Homes fired Aimee Stephens.  Stephens presented as a male when she was hired.  Six years into her employment, she told her employer that she planned to “live and work full-time as a woman.”  The funeral home fired her, telling her that “this is not going to work out.”  Stephens sued the funeral home and alleged sex discrimination under Title VII.  The Sixth Circuit – the federal court of appeals that covers Michigan as well as Ohio, Kentucky, and Tennessee – agreed with her and held that Title VII bars employers from firing employees because of their transgender status.

The Court’s analysis started with the language of Title VII itself.  Title VII makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”  To determine what it means to “discriminate…because of such individual’s…sex,” the Court looked to what the terms meant when Congress passed the law in 1964:

  • “Sex” referred to the biological differences between male and female.
  • “Because of” meant “by reason of” or “on account of.”
  • “Discriminate” meant to make a difference in treatment or favor of one as compared to others.

So, an employer discriminates on the basis of sex in violation of Title VII when it intentionally relies in part on an individual employee’s sex when deciding to take an adverse employment action against the employee.

The Court acknowledged that homosexuality and transgender status are distinct concepts from sex.  But it held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  It provided an example of an employer with two employees, both of whom are attracted to men.  The two employees are materially identical in all respects, except that one is a man and the other is a woman.  If the employer fires the male employee for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits or actions that it tolerates in the female employee.  Thus, the employer has discriminated against the male employee because of his sex, in violation of Title VII.

Of course, sex (or the employee’s homosexuality or transgender status) need not be the only factor that motivates the adverse employment action.  But an employer violates Title VII if it would not have discharged an employee but for that individual’s sex

The Court acknowledged that some employers fear that complying with Title VII’s requirements regarding sexual orientation and transgender status may require them to violate their religious convictions.  The Court recognized these legitimate concerns, but it largely punted the issue to another time.  It mentioned that Title VII already contains an express exception for religious organizations, and that the Supreme Court has recognized that the First Amendment can bar the application of employment discrimination laws to employment claims between ministers and religious institutions.  In the end, the Court held that how protections for religious liberty interact with Title VII are questions for future cases.

The Supreme Court’s decision did not change the status of state law.  In Michigan, the Elliott-Larsen Civil Rights Act does not expressly prohibit discrimination on the basis of sexual orientation or transgender status.  However, in a tweet celebrating the Supreme Court’s opinion, Governor Whitmer stated that “[t]here is still more work to do.  We must continue fighting to expand the Elliott-Larsen Civil Rights Act (“ELCRA”) to protect members of the LGBTQ+ community and make Michigan a state where more people want to move to for opportunity.”  In June 2019, Michigan Attorney General Dana Nessel allowed the Michigan Department of Civil Rights to investigate claims based on sexual orientation or gender identity despite a Michigan Court of Appeals decision that held that the ELCRA does not prohibit discrimination on the basis of sexual orientation or gender identity.  And organizers of a ballot initiative to expand the ELCRA’s definition of sex to include sexual orientation and gender identity or expression are continuing to collect signatures in support of their proposal.

The Court also did not address specific workplace issues like access to single-gender bathrooms, locker rooms, and showers.  These issues require thoughtful and considered analysis, especially given the broad scope of the Supreme Court’s definition of “sex” in today’s opinion.  We encourage employers to seek legal counsel if and when these issues arise.

The Miller Johnson team was prepared for today’s decision and it is ready to assist our clients with their needs.  If you have any questions, please contact a member of Miller Johnson’s Employment and Labor group.