Attorney Harrison Oldham

Yesterday, in a landmark the U.S. Supreme Court ruled that “an employer who fires an individual merely for being gay or transgender violates Title VII.” Title VII of the Civil Rights Act of 1964 (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” due to “such individual’s race, color, religion, sex, or national origin.”

In Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), the Court held “that employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Justice Neil Gorsuch wrote the majority opinion, in which Chief Justice Roberts and the four liberal justices joined. Justice Alito wrote a 107-page dissent, in which Justice Thomas joined, and Justice Kavanaugh dissented separately.

The case came before the Supreme Court as a consolidation of three cases. In each case, an employer allegedly fired a longtime employee because of that employee’s sexual orientation or gender identity. In the three cases, Bostock worked for Clayton County, Georgia as a child welfare advocate. His employment was terminated for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Donald Zarda worked as a skydiving instructor, and his employment was terminated days after he mentioned to a customer that he was gay. Aimee Stephens presented as male when she began working at the R.G. & G.R. Harris Funeral Home. Six years after her employment began, she informed her employer that she intended to live and work full-time as a woman when she returned from vacation. The funeral home fired her before she left on vacation. The Court granted certiorari to resolve the circuit split as to whether Title VII included protections for homosexual and transgender persons.

In Bostock, the Court held that Title VII’s prohibition of employment discrimination “because of” sex encompasses discrimination against homosexual and transgender employees. The decision framed the question clearly, by stating: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” The majority also answered this question clearly, writing, “An 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.”

The majority held that a plain reading of the text of Title VII shows that an employer’s discrimination against an employee because of that employee’s sex violates the statute. The employers in the case argued that the term “sex” should be interpreted to mean only “status as either male or female [as] determined by reproductive biology.” The Court disagreed with that restrictive definition and reasoned that Title VII inherently protects LGBTQ individuals from discrimination because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

As the Court explained, by “discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”

Relying on the unambiguous statutory language, the majority concluded that “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.”

While the cases before the Court involved discriminatory termination claims and the Court therefore focused its analysis on whether Title VII prohibits firing employees because of their sexual orientation or transgender status, the same analysis likely will apply to all Title VII claims alleging discrimination based on sexual orientation or gender identity — including claims alleging failure to hire/promote and hostile environment claims. After Bostock, employers covered by Title VII that have nondiscrimination policies that do not cover sexual orientation and gender identity should revise those policies immediately. In addition, employers should take the following steps in response to the Bostock decision:

• Conduct revised non-discrimination training and anti-harassment training and supervisors that covers discrimination and harassment based on LGBTQ status
• consider accommodations for employees in the process of a gender transition
• address inappropriate behaviors targeted at an individual’s sexual orientation or gender identity in the same way as inappropriate behavior based on race, age, disability, religion and other protected traits.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.