In a ground-breaking opinion authored by Justice Gorsuch and issued earlier today, the United States Supreme Court (“SCOTUS”) held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964 (“Title VII”). This holding settles a split in jurisprudence among the circuits and unequivocally states that discrimination on the basis of an employee’s homosexuality or transgender status is necessarily discrimination tied to the employee’s sex, and thus violates Title VII. Although this decision only applies to employment cases under Title VII, we expect that the courts will now interpret Title IX of the Educational Amendments Act of 1972 in the same way.
Last fall, we reported at our annual seminar that SCOTUS agreed to review three LGBTQ Title VII employment cases: Altitude Express, Inc. v. Zarda; Bostock v. Clayton Co. Bd. of Commissioners; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC.
In all three cases, the employers did not dispute that they fired their employees for being homosexual or transgender; rather, they contended that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. SCOTUS’ opinion dismissed this argument — relying on the plain text of the statute as opposed to legislative history or Congressional intent. SCOTUS explicitly rejected the employers’ arguments that homosexuality and transgender status are distinct concepts from sex, holding that an employer who discriminates against employees, even in part, on those bases necessarily and intentionally applies sex-based rules regardless of how “sex” was defined in 1964 when Title VII was originally enacted. As Justice Gorsuch stated, “[w]hen the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” The Court’s full opinion can be found here.
In Altitude Express, Inc. v. Zarda, a skydiving instructor brought a sex discrimination claim under Title VII alleging that his employer fired him because he failed to conform to male sex stereotypes. The Second Circuit determined that discrimination based on sexual orientation is discrimination “because of sex,” and therefore is prohibited under Title VII.
In Bostock v. Clayton Co. Bd. of Commissioners, on the other hand, a Clayton County employee alleged that his employer discriminated against him based on his sexual orientation and gender stereotyping. The Eleventh Circuit Court of Appeals upheld the dismissal of Bostock’s claim, concluding that sexual orientation discrimination is not a legally recognized claim under Title VII.
In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, the Sixth Circuit Court of Appeals reversed a lower court and held that a funeral home engaged in unlawful discrimination based on gender stereotyping, and that the EEOC was entitled to bring a Title VII claim against the funeral home on the grounds that it discriminated against an employee based on her transgender and transitioning status.
This ruling will have far-reaching implications for educational employers. Please contact Stanley Eisenhammer, Pamela Simaga, or Frazier Satterly if you have any questions on how this ruling may impact your district.