On June 15, 2020, in what some have called a landmark decision, the United States Supreme Court ruled that discrimination in the workplace based on sexual orientation or gender is illegal. Three cases were consolidated into the Bostock v. Clayton County case (590 U.S. _____ (2020))—two involved employees who had been fired for being gay and one involved an employee who was fired after she announced her intent to transition from male to female. All three plaintiffs were long-term employees who were terminated shortly after the employee revealed that he or she was gay or transgender and all three employers conceded that the sexual orientation or gender was the deciding factor in the terminations.

In Title VII of the Civil Rights Act of 1964, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. The Court, in these cases, was tasked with deciding whether an employer can fire someone simply for being homosexual or transgender.

The only statutorily protected characteristic at issue in the cases was “sex”—and that is also the primary term in Title VII, the meaning of which the parties disputed. The employees conceded, for argument’s sake, that the term “sex” in 1964 referred to “status as either male or female as determined by reproductive biology.”

Ultimately, the Court held that, by any definition, the employers were taking action because of biological distinctions between male and female. Stating that a statutory violation occurs when an employer relies, at least in part, on the employee’s sex in deciding on adverse employment action, the Court explained that the plain language of the statute—prohibiting discrimination “because of” sex—incorporates discrimination based on sexual orientation or transgender status. If an employer fires a male employee for dating a man—but does not fire a female employee for the same conduct—the employer treats the male employee differently for traits or actions it tolerates in his female colleague. If an employer fires a transgender employee who identified as a male at birth and now identifies as female, but retained an employee who identified as female at birth and continues to do so, the transgender employee is being penalized for traits that the employer tolerates in the female employee. Thus, the employee’s sex plays an unmistakable role in the adverse employment decision, and the decision would not have been made “but for” the employee’s sex.

As such, the majority held that treating individual employees adversely because of their sexual orientation or gender identity is inherently discrimination “because of sex” and violates the precepts of Title VII.

Recent prior decisions from the Supreme Court on LGBTQ rights relating to such things as marriage equality, have been based on concepts of dignity, privacy, and constitutional law. In contrast, recent Supreme Court appointee Justice Neil Gorsuch, in authoring the majority’s decision in Bostock, relies on a textual analysis of Title VII—a strictly statutory interpretation. For Gorsuch, known as a “strict constructionist” in his time on the federal bench, the text of the law is the only thing that matters. In writing for the 6-3 majority, he states, “ours is a society of written laws,” and that means that “judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” Because Congress “adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the Court had to hold that anti-LGBTQ discrimination in the workplace is illegal.

The timing of the Supreme Court’s decision in Bostock is strangely coincidental given President Trump’s issuance of an executive order on June 12, 2020, with the stated goal of “restor(ing) the rule of law” by conforming portions of the Affordable Care Act to the text of Title VII of the Civil Rights Act of 1964. Trump’s proffering of a regulation through the Health and Human Services Agency operates to roll back previous protections enacted by Congress during the Obama administration related to sex and gender identity. Stating that Title VII makes no reference to sexual orientation or gender identity, Trump’s HHS found that Obama’s HHS interpreted protections “on the basis of sex” in an overly broad manner when they included the right of homosexual or transgendered Americans to protection and equal opportunity in seeking or obtaining medical treatment. It is one of many rules and regulations put forward by the Trump administration that defines “sex discrimination” as only applying when someone faces discrimination for being female or male, and does not protect people from discrimination on the basis of sexual orientation or gender identity. Such an action seems guaranteed to be challenged based on the Bostock analysis of the exact same provision of, and definitions within, the Civil Rights Act of 1964.

The Bostock decision will directly impact workplaces in many states. Most states do not have statutes prohibiting discrimination on the basis of sexual orientation or gender identity. Thus, before Bostock, discrimination on those bases was legal. It is now expressly prohibited in all jurisdictions under federal law. However, the decision will likely not have a significant impact on day-to-day operations for California employers, who, since 2012, have been subject to state laws prohibiting discrimination based on sexual orientation and gender identity and expression. The decision will, however, expand California employees’ rights to sue in federal court.

The takeaway from the Bostock case is that employment decisions that are in any way influenced by sex are prohibited and will now subject California employers to potential liability under federal law, as well as existing state statutes.

If you have questions on labor or employment issues, please contact Debra Hinshaw Vierra at (916) 468-4243 debra@whitebrennerllp.com or Erin Dervin at (916) 468-0623 erin@whitebrennerllp.com.