The Supreme Court of the United States issued its decision in Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 on June 15, 2020. Bostock involves three separate cases that essentially asked the same question - does an employer discriminate against an employee based on sex when the employee is fired simply for being homosexual or transgender? In a 6-3 opinion, the Court determined that the answer to this question is YES.
Gerald Bostock worked for Clayton County, Georgia for more than a decade as a child welfare advocate. Under his leadership, the county won national awards. Bostock was fired for conduct “unbecoming” for a county employee after he joined a gay recreational softball league.
Donald Zarda was a skydiving instructor at Altitude Express in Long Island, New York. After he mentioned he was gay, he was abruptly fired.
Aimee Stephens worked at R.G. & G.R. Funeral Homes in Garden City, Michigan. When the funeral home hired Ms. Stephens, she presented as a male. Before leaving for vacation, Ms. Stephens informed the funeral home that she planned to begin living full-time as a woman when she returned from vacation but was fired by the funeral home before her vacation time ended.
In all three cases, the plaintiffs filed discrimination claims in federal court based on sex under Title VII of the Civil Rights Act of 1964. The federal courts were divided as to whether firing someone because of homosexual or transgender status amounted to a violation of Title VII based on sex. Therefore, the Supreme Court of the United States accepted the case to determine the issue.
Title VII prohibits an employer from discriminating against an applicant or employee with regard to hiring, firing, or taking other adverse actions related to terms of employment based on race, color, religion, sex, and national origin. 42 U.S.C. § 2000e-2(a)(1). In Bostock, the Court reasoned that if the employer fires the male employee for no reason other than the fact he is attracted to men but does not fire a woman who is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. The Court explained that it is impossible to discriminate against a person for being homosexual or transgender without also discriminating against that individual based on sex. If changing the employee’s sex would have yielded a different choice by the employer—a statutory violation of Title VII has occurred.
The Court concluded that when an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex and therefore violates Title VII.
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