On June 15, 2020, in a 6-3 decision, the Supreme Court of the United States ruled the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination based on sex in the workplace. The historic decision is a blow to the Trump administration, which sided with the employers in the three consolidated cases before the Court.
The first two of the three consolidated cases involved two employees who sued their former employers after they were fired because they were gay. Specifically, the employee in the first case – Gerald Bostock – worked as a child welfare coordinator for Clayton County, Georgia and was fired after he joined a gay recreational softball league. The second case involved Donald Zarda, a now-deceased skydiving instructor who was fired after disclosing to his employer that he was gay. The third case involved Aimee Stephens, a now-deceased funeral director who identified as transgender. After disclosing to her former employer that she identified as transgender and would be coming into work as a woman, she was fired.
President Trump’s first appointee to the Court, Justice Neil Gorsuch, penned the majority opinion, joined by Justices Ruth Bader Ginsburg, John Roberts, Stephen Breyer, Sonia Sotomayor, and Elana Kagan. The majority found that discrimination on the basis of an individual’s sexual orientation or gender identity is barred by the language of Title VII of the Civil Rights Act of 1964 which bans discrimination in employment based on race, religion, national origin, or sex.
“It is impossible to discriminate against a person for being homosexual or transgender without discrimination . . . based on sex,” Justice Gorsuch wrote. He used an example of two employees – one female, the other male – who are attracted to men to further observe: “If the employer fires the male employee for no reason other than the fact that he is attracted to men,” but chooses not to fire the female employee attracted to men, then that would clearly constitute a firing based on sex. Despite noting that some employers may still have valid objections to hiring gay or transgender workers based on religion, he further opined that concerns regarding how the Civil Rights Act of 1964 intertwine with “religious liberty are nothing new.”
Penning the lead dissent, (Justice Brett Kavanaugh wrote his own dissent) Justice Samuel Alito, joined by Justice Clarence Thomas, accused the majority of coming to its decision by falsely utilizing a textualist approach, or by pretending to abide by the words of the statute when in fact he believed the majority chose to update the language of the statute so “to better reflect the current values of society.”
As a rebuke, Justice Gorsuch wrote, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
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About Camilo Burr
Camilo Burr is an Associate in Faruqi & Faruqi’s New York office and focuses his practice on employment law and wage and hour class action litigation.