Posted: June 15, 2020 | News

On June 15, 2020, the Supreme Court of the United States issued its decision in a series of high-profile gay and transgender civil rights cases. Specifically, the Supreme Court was asked to determine whether sexual orientation and transgender status fell within the protected class of "sex" under Title VII, a 1964 civil rights law protecting employees against discrimination.

In a 6-3 ruling, the Supreme Court held that "an employer who fires an individual merely for being gay or transgender violates Title VII." The ruling was issued in response to a trio of civil rights cases. All three cases involved plaintiffs arguing that Title VII of the Civil Rights Act prohibits employment discrimination "because," which includes protection against discrimination because of sexual orientation or gender identity.

In each of the cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. In the Bostock v. Clayton County Georgia case, it was alleged that Clayton County, Georgia, fired Gerald Bostock, a county employee, shortly after he began participating in a gay recreational softball league. In the Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda case it was alleged that the employer fired Donald Zarda days after he mentioned being gay. In the R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al. case it was alleged that Aimee Stephens, who presented as a male when she was hired, was fired after she informed her employer that she planned to "live and work full-time as a woman." Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964.

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.

Justice Neil Gorsuch authored the opinion and was joined by Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.  In delivering the opinion of the majority, Justice Gorsuch stated:  

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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."


Justices Samuel Alito, Brett Kavanaugh and Clarence Thomas dissented from the decision.

For many employers, such as employers in California, the Supreme Court's decision will not have a significant impact on their operations because The Fair Employment and Housing Act (FEHA) already explicitly prohibits discrimination on the basis of sexual orientation, gender identity or gender expression. However, the new ruling does serve as reminder for employers that they should ensure that their employees are adequately trained on their discrimination policies and the implications of non-compliance.

If you have any questions or concerns regarding the Supreme Court's recent ruling, the attorneys at Ferruzzo & Ferruzzo, LLP are available to provide guidance.

Author Alison C. Gibbs, Esq.   

Alison C. Gibbs

Alison C. Gibbs, Esq. is a Senior Associate of the firm's Employment Practice Group.  Alison represents employers in a wide-range of employment-related litigation, including wage and hour defense, and defense of discrimination, harassment and retaliation claims.  Alison also regularly advises employers before litigation ever occurs, handling employment disputes and managing day-to-day employee issues, including reviewing employee handbooks policies, wage and hour compliance, leave issues, internal investigations, lay-offs, disciplinary action, terminations, severance negotiations, and other employment practices