“Today,” Justice Neil Gorsuch said, “we must decide whether an employer can fire someone simply for being homosexual or transgender.” In a landmark decision, the United States Supreme Court ruled in June 2020 that the seminal employment discrimination statute, Title VII of the Civil Rights Act of 1964, protects gay, lesbian, and transgender people.  The opinion from the Supreme Court was 6-3, with Justice Gorsuch writing the majority opinion. 

A.    A Title VII Primer

Title VII prohibits employers from discrimination by setting or changing a person’s compensation, terms, conditions, or privileges of employment, on the basis of that person’s race, color, religion, sex, or national origin. Employers cannot use any of these factors in determining whether to hire (or, for that matter, discipline or terminate) a certain applicant/employee.

B.    The Cases Before the Court

The U.S. Supreme Court considered three separate cases in its opinion.  Two of the cases involved employees who sued after contending they had been fired because their employers learned they were gay. The third involved an employee who was transgender.

In the first case, Gerald Bostock, a child welfare coordinator for Clayton County, GA who had good performance and had won awards for his work in his position, alleged he was fired after his employer discovered that he had joined a gay recreational softball league.  In the second case, a now-deceased sky diving instructor, Donald Zarda, alleged he was fired from his job after informing a customer of his sexual orientation.  In the third case, Aimee Stephens alleged she was fired two weeks after she told her boss that she was transgender and that, after 6 years of coming to work as a man, she would be now be coming to work as a woman. 

C.    “On the Basis of Sex”

In all three cases, the Court held that the protections against discrimination “on the basis of sex” include the protection of being gay, lesbian, or transgender.  As a result, termination of these individuals’ employment “on the basis of sex” violated Title VII.

The Court’s opinion hinged on the definitions of “discriminate” and “sex”.  To discriminate, the Court opined, means to have distinctions or differences in treatment that injure protected individuals. The Court interpreted the term “sex” as used in the Title VII broadly to include not just the traditional cisgenders, but also sexual orientation and transgender.  The disparate treatment of an individual on the basis of sex, as occurred in each of the three cases before the Court, must be intentional. 

Following this reasoning, the Court held that the employers’ actions of discharging their employees in each of the three cases violated Title VII.

D.    Implications

The Court’s ruling makes clear that an employer who intentionally treats a person differently “on the basis of sex”—such as by firing an employee for actions or attributes it would tolerate in an individual of another sex or sexual orientation or gender identification—discriminates against that person in violation of Title VII.  As the United States Supreme Court’s job is to interpret the laws of the United States, its holding is now “the law of the land”. 

Texas has its own state version of Title VII, the Texas Commission on Human Rights Act (TCHRA), modeled in part after Title VII. Like Title VII, the TCHRA prohibits employment discrimination based on race, color, religion, sex, national origin, disability, and age.  Given the recency of the Bostock case, there is no judicial interpretation about whether the TCHRA will also be held to prevent intentional discrimination in the employment and termination of gay, lesbian or transgender individuals.  

As the Bostock case makes clear, employers must treat their employees fairly and uniformly, and base their decisions on objective criteria.  As part of any prudent risk management process, employers should evaluate, review and update their employment manuals and policies and procedures to prohibit discriminatory treatment in all its myriad forms. 

It is always a best practice to consult with a human resources manager and/or legal counsel regarding any employment-related issues and any reviews of your employment manuals.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have. 

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