On June 15, 2020, in a 6-3 decision, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees from being terminated based solely on their sexual orientation and/or gender identity. There has long been a circuit split on this issue with some circuits, including the Seventh Circuit, holding that Title VII does protect gay employees, and other circuits, including the Eleventh Circuit, holding that Title VII does not protect such employees. With the Supreme Court’s opinion in Bostock v. Clayton County, Georgia, the law is settled that sexual orientation and gender identity protections fall under Title VII. Aside from the ultimate holding, the decision is notable because it was authored by Justice Gorsuch and joined by Chief Justice John Roberts, two of the Supreme Court’s conservative justices.
Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Proponents of Title VII protections for LGBTQ employees have long argued that sexual orientation falls under the “sex” protections because employers were discriminating against gay employees based on their gender and the genders of those with whom they have romantic relationships. Opponents have argued that Congress could not have intended, in 1964 when the Civil Rights Act was enacted, to include sexual orientation in the protections under Title VII. The Court held that “[a]n 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.” Bostock v. Clayton Cty., Ga., 590 U.S. ___ (2020).
The opinion actually settled three cases that had been consolidated because they presented similar issues: Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. In Bostock, a man was fired from his job as a child welfare coordinator in Clayton County, Georgia in 2013 after he joined a gay softball league, despite positive job evaluations and proven success in the position. In Harris Funeral Homes, a funeral director who identified previously as a man came out to coworkers as a transgender woman and was fired two weeks later. In Zarda, a skydiving instructor was fired after telling a female client to not be worried about being strapped to him because he was “100 percent gay.” In each of these cases, the employee had been terminated based on his or her sexual orientation or gender identity. The Supreme Court was clear it sided with those arguing in favor of Title VII protections: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Bostock, 590 U.S. ___.
While this is a landmark case because it extends federal protections to gay and transgender employees, it has little practical consequence to the day-to-day decisions of Utah employers because Utah state law already protects these same groups. In 2015, the Utah State Legislature passed SB296, which added language to the Utah Antidiscrimination Act to prohibit employment discrimination based on sexual orientation and gender identity. Utah Code Ann. § 34A-5-106(1)(a)(I)-(J). For five years, Utah employers have been prohibited from terminating employees on those bases. The Supreme Court’s decision simply aligns federal law with existing Utah law and makes the broader monetary remedies of Title VII available to employees who have been discriminated against on the basis of sexual orientation or gender identity.
For assistance navigating Title VII discrimination issues and other employment issues, contact Trent Lowe at TLL@clydesnow.com or any of the attorneys in Clyde Snow’s Labor & Employment Group at 801.322.2516.