June 15, 2020

By:  Samantha J. Wood

Today, the U.S. Supreme ruled that Title VII of the Civil Rights Act bars discrimination on the basis of gender identity and sexual orientation.

Title VII makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1).  An employer, therefore, violates Title VII when it intentionally terminates an individual based, in part, on his or her sex.

In Bostock v. Clayton County, No. 17-1618 (June 15, 2020), which involved three consolidated cases, three employees sued their former employers, alleging sex discrimination under Title VII, after they were terminated on the basis of their homosexual or transgender identity.  The employers did not dispute that they fired the employees as a result of their homosexual or transgender identity.  Rather, they argued that Title VII does not extend protection to the employees on such basis.

The Supreme Court, however, disagreed, holding that an employer who fires (or otherwise discriminates against) an individual for being homosexual or transgender necessarily and intentionally discriminates against that individual, in part, because of sex.  “Sex plays a necessary and undisguisable role in the decision,” which is exactly what Title VII forbids. Accordingly, an employer who intentionally treats individuals differently because of their homosexual or transgender identity, penalizes those individuals on the basis of their sex in violation of Title VII.

While the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) already extended Title VII protection on this basis (see here), this case serves as a reminder to employers that their policies and practices must provide protections to LGBTQ employees.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.