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Supreme Court Decides Sexual Orientation & Transgender Employment Discrimination Cases

by | Jun 18, 2020

The Supreme Court of the United States published its long-awaited opinion this week addressing employment discrimination based on sexual orientation and gender identity.

Ruling. An employer violates Title VII of the Civil Rights Act, which makes it unlawful to discriminate against an individual “because of” the individual’s sex, by firing an individual for being homosexual or being a transgender person. The Court unequivocally stated that “an individual’s homosexuality or transgender status is not relevant to employment decisions.” This makes it unlawful for an employer to discriminate based on sexual orientation or gender identity.

Understanding the Court’s Reasoning. The following excerpt from the Court’s opinion illustrates its reasoning in reaching its conclusion:

  • “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

Religious Freedom. The Court recognized that its ruling may have implications regarding employers’ religious convictions but stated that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases.”

Action Point. Employers should update their equal employment opportunity policy regarding sexual orientation or gender identity and educate their managers and employees regarding the legal change at this time.

You can access the full opinion here: Bostock v. Clayton County, Georgia, 17-1618,

(U.S. June 15, 2020).

Please keep us in mind for any assistance you or someone you know may need with employment law concerns.

Eric J. Kolder, Shareholder
Labor & Employment Law