Yesterday, the U.S. Supreme Court issued a landmark 6-3 decision in a trio of linked cases (Altitude Express v. Zarda, Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission), finding that Title VII’s protections against sex discrimination—discriminating against an individual “because of” sex—prohibits discrimination based on sexual orientation and gender identity. Several states had previously enacted laws prohibiting such discrimination. This decision, which construes federal law and applies to all businesses with 15 or more employees, now extends protection from LGBT discrimination to applicants and employees in all states.
Justice Neil Gorsuch delivered the majority opinion, reasoning that, while “homosexuality and transgender status are distinct concepts from sex[,]” “homosexuality and transgender status are inextricably bound up with sex.” Accordingly, where an employer discriminates against an employee for being homosexual or transgender, the employer “necessarily and intentionally discriminates against that individual in part because of sex.” In the illustrative example provided by the Court, where an employer fires a male employee because he is attracted to men but does not take action against a female employee for the same, the employer is discriminating against the male employee for traits or actions that it tolerates in the female employee. Similarly, where an employer fires a transgender person who was identified as a male at birth but who now identifies as a female, but 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.
As explained by the Court, “Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”
Justice Gorsuch was joined by Justices John Roberts, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justices Samuel Alito and Brett Kavanaugh dissented, with Justice Clarence Thomas joining Justice Alito. In his dissent, arguing that the majority improperly assumed the role of congressional lawmakers, Justice Alito wrote, “There is only one word for what the court has done today: legislation.”