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Employers Prohibited from Discriminating on Basis of Sexual Orientation or Gender Identity

By: Travis Bryan, Attorney

On June 15, 2020, a landmark United States Supreme Court decision—Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020)—held that an “employer who fires an individual merely for being gay or transgender defies the law.” Prior to this decision, federal courts varied significantly on how, if at all, Title VII’s protections against sex discrimination protected homosexual or transgender employees. This ambiguity has now been resolved.

Homosexuality is defined as “the quality or characteristic of being sexually attracted solely to people of one's own sex.” (emphasis added). Transgender is defined as “denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex.” (emphasis added). An employee’s own gender is implicit in and necessary to the definitions of “homosexuality” and “transgender.” It follows that every employment decision based on homosexuality or transgender identity is based, in part, on that employee’s gender.

As the Court explained, “[w]hen an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted [homosexuality] or with which the individual identifies [transgender identity]). Title VII merely requires the employee’s gender be abut-for cause of the termination, not the only factor considered by the employer. An employer’s consideration of an employee’s homosexuality or transgender identity does not reduce the importance of or otherwise change the fact the employer is directly considering the employee’s gender, too.

The following chart helps explain the Court’s strict textual analysis of Title VII:

Employee’s Gender

Identity

Employment Decision

Male

Sexually attracted to males

Terminated

Male

Sexually attracted to females

No action

Male

Identifies as female

Terminated

Male

Identifies as male

No Action

Female

Sexually attracted to females

Terminated

Female

Sexually attracted to males

No action

Female

Identifies as male

Terminated

Female

Identifies as female

No action

Title VII’s “but-for” test directs courts to change one factor at a time to determine whether the ultimate employment decision changes as a result. If it does, that factor is a “but-for” cause of the employment decision. In each hypothetical above, the employee’s gender is a “but-for cause” of the employment decision, which is evidenced by the fact that changing the employee’s gender in the first column automatically reverses the employment decision in the third column, too.

The impact of this decision on the over 100 federal statutes prohibiting discrimination because of sex (other than Title VII) will be an interesting area of the law to monitor for years to come.