On Monday, June 15, 2020, the U.S. Supreme Court issued a landmark decision holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on an employee’s sexual orientation or gender identity. In Bostock v. Clayton County, Georgia, the Supreme Court considered “whether an employer can fire someone simply for being homosexual or transgender” under federal law. The majority determined that when an employer “fires an individual for being homosexual or transgender . . . [s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The Bostock decision resolves a recent fissure amongst the nation’s federal appellate courts as to whether Title VII’s prohibition against “sex” discrimination can and should be construed to encompass sexual orientation or gender identity. The split amongst the U.S. circuit courts of appeals can be traced back to the Seventh Circuit’s decision in Hively v. Ivy Tech Community College. In that case, the Seventh Circuit observed that the U.S. circuit courts of appeals have long “understood [Title VII’s] prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation,” while noting that the Supreme Court had never addressed that question. In Hively, the Seventh Circuit took a “fresh look” at the issue and ultimately concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination.” In doing so, the Seventh Circuit became the first federal circuit court of appeals to conclude that sexual orientation is a protected class under Title VII.
After the Seventh Circuit’s 2017 decision in Hively, circuit courts soon followed with their own decisions on the subject, with some circuits concluding that Title VII prohibits discrimination based on sexual orientation while others concluded that it does not, leaving the Supreme Court with the final word on the matter.
Early on in the majority’s opinion in Bostock, the Court recognized that when Title VII was enacted in 1964, those in Congress may not have anticipated that the Supreme Court might one day interpret the law to prohibit discrimination because an employee is gay or transgender. The majority opinion also concluded, however, that in construing the law, the drafters’ intentions are no substitute for the plain language of the statute. In that respect, the majority determined that there is “no contest” that Title VII’s prohibition against discrimination based on “sex” encompasses sexual orientation and gender identity.
The Bostock decision reflects a substantial change to the employment law framework by adding classes of individuals and characteristics protected from workplace discrimination under federal law. While some states have already enacted legislation prohibiting discrimination based on sexual orientation or gender identity, the majority of states have not. Accordingly, every employer, regardless where located, should take note of the Bostock decision.
For any questions regarding the potential impact of the Supreme Court’s decision in Bostock, Title VII, or other employment law matters, please contact Matt Tyrrell at (312) 648-2300.
A version of this article has been published by the Chicago Daily Law Bulletin.
[DISCLAIMER – This information is solely for information purposes and does not constitute legal advice. Please contact SFNR with all legal questions.]