In a 6-3 opinion written by notoriously conservative Justice Gorsuch, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 covers employment discrimination based on sexual orientation and gender identity in Bostock v. Clayton County, Georgia, 590 U.S. __ (2020). The opinion was released to the public on June 15, 2020.

 

What is Title VII?

 

Title VII is a portion of the larger Civil Rights Act of 1964, the first truly significant civil rights law borne out of the landmark Supreme Court decision in Brown v. Board of Education, which legally ended segregation. The famous civil rights events found in our history books – from Rosa Parks sitting in the front of the bus to Martin Luther King, Jr.’s “I Have a Dream” speech – followed Brownand led to the enactment of Title VII. After a dramatic congressional debate, it was signed into law by President Lyndon B. Johnson on July 2, 1964.

 

Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. Since its inception, there have been amendments, including The Civil Rights Act of 1991, the Lily Ledbetter Fair Pay Act of 2009, the Americans with Disabilities Act of 1990, various other section updates, and a section regarding recovery of compensatory and punitive damages in cases of intentional violations of Title VII. It is enforced by the Equal Employment Opportunity Commission.

 

Up until now, it’s been hotly debated whether or not the word “sex” included sexual orientation or simply biological distinctions. The Supreme Court clarified in Bostockthat an employer who fires an individual merely for being homosexual or transgender is basing a decision on traits or actions it would not have questioned in members of a different sex, which is what Title VII forbids.

 

How textualism shaped this opinion.

 

There are different ways to interpret the law, and different judges hold different views. The justice who wrote the opinion for the majority, Justice Gorsuch, is a textualist. A textualist is someone who has the legal philosophy that statutes should be interpreted considering only the words used in the law as they are commonly understood. For Justice Gorsuch and the majority of the Supreme Court judges, the ordinary public meanings of “sex,” “because of,” and “discriminate” helped shape their opinion that Title VII covers sexual orientation and non-biological gender.

 

The three cases reviewed by the Supreme Court.

 

Although this opinion is filed under the Bostock case, there were three cases in total that dealt with the same issue of Title VII employment discrimination that were all considered by the Supreme Court and included in the opinion. The title case, Bostock, involved a gay man who spent a decade as a child welfare advocate in Georgia, earning his county national awards for its work. However, when influential members of the community found out he was gay, they made comments about his sexual orientation and he was fired for “unbecoming” conduct. The second case the Supreme Court reviewed in this decision was Altitude Express v. Zarda, 723 Fed. Appx. 964 (2018), which involved a skydiving instructor who spent several years with the same company, only to be fired days after he mentioned he was gay. Finally, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, 883 F. 3d 100 (2018) involves a woman with gender dysphoria who, after six years with her company, transitioned to female and was let go because her employer said it wasn’t going to work out.

 

What does this mean for me as an employee?

 

In its nearly 60 years, Title VII has shaped the way employers in both the private and public sectors handle employees across the spectrum of employment, from recruiting and hiring to training and disciplining, and everything in between. Title VII covers employers with 15 or more employees, the federal government, employment agencies, and labor organizations.

 

If you apply to, or are employed by, a company covered by Title VII, you can’t be denied employment or be treated differently based on certain factors. Those factors are race, religion, national origin, and sex. This extends to stereotypes and assumptions about any of those characteristics. You also can’t be harassed based on any of those traits.

 

If you are harassed or discriminated against in your workplace, or during an application process, based on any of those factors listed above – including sexual orientation or gender identity – you should notify your employer immediately. If nothing is done or the issue persists, you may have a discrimination claim. And if you do pursue a claim properly, your employer can’t retaliate against you. Even if you are just helping the EEOC investigate someone else’s claim, you are protected under the law from any retaliation.

 

The Supreme Court of the United States, through Bostock, has made it clear that laws against discrimination, harassment, and retaliation protect the LGBTQ community, specifically holding that Title VII covers homosexuality and gender identity.

 

You can read the Bostock opinion in its entirety here.  

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