A Closer Look at Title VII and Sexual Orientation and Gender Identity

Katherine M. Flett

By Katherine M. Flett

Authored by Katherine M. Flett with assistance from Connor P. Lynch

The Supreme Court, in a 6-3 decision, ruled that Title VII of the Civil Right Act, which prohibits employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.


discriminationIn recent years, federal circuit courts have come to conflicting conclusions when addressing whether Title VII of the Civil Rights Act, prohibiting employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.  In an attempt to resolve the inconsistent holdings across federal appellate courts, the Supreme Court agreed  to hear three cases that dealt with this issue: Altitude Express,  Inc. v. Zarda; Bostock v. Clayton County; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. All three cases involved an employer allegedly firing a long-time employee simply for being homosexual or transgender.

In Altitude Express, Inc. v. Zarda, Donald Zarda worked as a skydiving instructor in New York. After several seasons with the company, Zarda mentioned he was gay, and a few days later he was fired.

In R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., Aimee Stephens presented herself as a male while interviewing for the position at the funeral home. Two years into her service with the company, she began taking treatment for despair and loneliness before eventually being clinically diagnosed with gender dysphoria. In her sixth year with the company, Stephens wrote to her employer explaining that she planned to “live and work full-time as a woman” upon returning from an upcoming vacation. The company fired her before she left telling her, “this is not going to work out.”

In Bostock v. Clayton County, Gerald Bostock worked for Clayton County in Georgia as a welfare advocate. After a decade of working for the county, Bostock began playing in a gay, recreational softball league. He was fired shortly thereafter.

Each employee brought suit under Title VII of the Civil Rights Act of 1964. The 2nd Circuit concluded in Zarda’s case that Title VII prohibited employment discrimination on the basis of sexual orientation. Similarly, the 6th Circuit found in Stephens’ case that Title VII bars employers from firing employees because of their transgender status. On the other hand, the 11th Circuit concluded employers are not barred from firing employees because they are gay and dismissed Bostock’s suit as a matter of law.

The Supreme Court consolidated these cases under Bostock v. Clayton County.

Supreme Court’s Ruling

The Supreme Court’s analysis centered around whether sexual orientation and gender identity are encompassed in Title VII’s prohibition of discrimination on the basis of sex. To do this, the Supreme Court first established that “sex” refers “only to the biological distinctions between male and female.”

Next, they concluded that a “but-for” test is used to determine if discrimination was “on the basis of sex.” Under this test, Title VII prohibits any actions which would not have occurred “but for” discrimination on the basis of sex. Therefore, liability cannot be avoided by establishing some other factor contributed to the employment decision so long as the employee’s sex was a but-for causation of the action.

In taking this approach, the majority concluded that it in determining whether an individual is homosexual or transgender, an employer would necessarily have to make a determination on the sex of the individual. Because the sex of the individual is necessarily a factor, the majority concludes that discrimination on the basis of homosexuality or transgender status is, by definition, discrimination on the basis of sex.

The Supreme Court clarified that the existence of other factors does not matter, stating:

When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

The employers argued that if Congress had intended for homosexuality and transgender status to be protected characteristics under Title VII, it  would have explicitly listed them. The Supreme Court acknowledged that sex and homosexuality or transgender status are distinct concepts, but observed that “when Congress chooses not to include any exceptions to the broad rule, courts apply the broad rule.” Furthermore, the Court made clear that we are ultimately governed by legislative language  as opposed to the principal concerns of the legislators, noting that while Congress did not explicitly list homosexuality or transgender status as protected characteristics under Title VII, it enacted broad language prohibiting discrimination on the basis of sex, which included homosexuality or transgender status.

What This Means for Employers

The Supreme Court provided a straight-forward rule as to what would constitute a violation of Title VII stating:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. [emphasis added]

Prior to this decision, 26 states had enacted state law protections against discrimination based on sexual orientation and gender identity. In the state’s that adopted these statutes, the  Supreme Court’s decision simply reinforces these laws. In  the remaining states, employers will have to ensure they have policies and practices in place to prevent discrimination and harassment based on either sexual orientation or gender identity.

Posted by Attorney Katherine M. Flett and Connor P. Lynch. Katherine Flett is a member of the litigation team whose primary focus is on assisting clients in insurance defense, business litigation, employment law, and bankruptcy matters. Lynch is a law clerk with Danna McKitrick. He attends University of Missouri School of Law and is a graduate of University of Missouri-Columbia School of Journalism.

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