U.S. Supreme Court Says Federal Law Protects Gay and Transgender Employees From Workplace Discrimination

Connecticut’s anti-discrimination statutes explicitly list sexual orientation and gender identity as protected classes, and therefore gay and transgender employees are protected from workplace discrimination by state law. Title VII of the Civil Rights Act of 1964 (“Title VII”) does not contain such explicit protections, however, and therefore it was unclear whether federal law similarly protected those individuals. The U.S. Supreme Court recently answered that question in Bostock v. Clayton County, No. 17–1618 (U.S. June 15, 2020), ruling in a 6-3 decision that Title VII protects gay and transgender workers from workplace discrimination. Thus, these employees are now protected by both state and federal law from discrimination in Connecticut.

In the Bostock decision, the Court considered three separate cases. The first two concerned lawsuits from gay men who argued that they were fired because of their sexual orientation. The third case was a lawsuit brought by a transgender woman who said her employer fired her when she announced that she would embrace her gender identity at work. In all three cases, the employers conceded that they fired the individuals because they were gay or transgender. Title VII prohibits discrimination against employees “because of . . . sex.” Thus, the question before the Supreme Court was whether firing someone because they are gay or transgender constitutes “sex” discrimination under Title VII.

The Court answered that question in the affirmative based on the plain language of Title VII, holding that an “[e]mployer 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.” The Court gave two examples to demonstrate this concept:

• An employer has two employees who are attracted to men. Both employees are identical in all material respects except one is male and the other is female. If the employer fires the male for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits it permits with female employees.  
• On the other hand, if an employer terminates a female individual for tardiness or incompetence, and would not have tolerated those same characteristics in a man, then Title VII’s prohibition against sex discrimination is not implicated.

When assessing sex discrimination claims, the Court reiterated that a “but-for” standard should apply. In other words, if the employer would not have discharged an employee but for that individual’s sex, the causation standard is met and liability may attach. The Court also rejected the claim that Congress did not intend for the definition of sex to cover gay or transgender employees in 1964 when Title VII was enacted, stating that although “Congress may not have had discrimination based on sexual orientation or transgender status in mind when it enacted the landmark law over a half century ago, Title VII’s ban on discrimination protects gay, lesbian and transgender employees.”

The Court’s decision is expected to have far-reaching implications on other areas of the law. As the dissent points out, “[o]ver 100 federal statutes prohibit discrimination because of sex,” and the courts will look to this decision in interpreting and evaluating what “sex” means under those laws.