Title VII of the Civil Rights Act of 1964 is the most sweeping anti-discrimination law ever enacted in the United States. By its express terms, it prohibits discrimination on the basis of race, religion, color, national origin, or sex. Neither it nor any other federal anti-discrimination statute mentions sexual orientation or sexual identity as a protected class. As such, many courts over the years concluded that there is no federal law against discrimination based on those characteristics. In a landmark decision issued on June 15, 2020, the United States Supreme Court changed all that.
The case arose from three separate terminations. Gerald Bostic worked as a child welfare advocate for a Georgia County. Despite stellar performance, Mr. Bostic was fired from his job for conduct “unbecoming” of a county employee after he joined a gay softball league. After several seasons of employment, Donald Zarda was terminated from his job as a skydiver just days after he mentioned he was gay. Aimee Stephens worked for a funeral home for several years, the first few of which she lived as a man. In her sixth year of employment, after seeking treatment for despair and loneliness, and, on the advice of her physician, she informed her employer she intended to begin living as a woman, at which point she was promptly fired.
Until now, there was a split among the federal courts on whether Title VII offered any relief to people like Mr. Bostic, Mr. Zarda or Ms. Stephens. By a vote of 6-3, the Supreme Court settled the issue. Justice Gorsuch wrote the opinion for the majority and noted that, while the drafters of Title VII may not have intended for it to offer protection for gay or transgender individuals, the law should be interpreted in light of the times in which we find ourselves. The first two paragraphs of the decision say it all:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer 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.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
For years, clients have asked me whether federal anti-discrimination laws prohibited discrimination on the basis of sexual orientation. My answer was always, “it’s complicated.” That is no longer so.