On June 15, 2020, the United States Supreme Court ruled that Title VII of the 1964 Civil Rights Act protects gay and transgender employees from discrimination.  The Court’s decision was 6-3 and the opinion was authored by Justice Gorsuch, who was joined in the decision by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan.

Title VII of the 1964 Civil Rights Act is the federal law that prohibits discrimination in employment on the bases of race, color, religion, sex and national origin.  At issue before the Court was whether the word “sex” in Title VII protects employees from discrimination on the basis of their sexual orientation or transgender status.   Before the Court were appeals of three cases where the employers allegedly fired long-term employees for being homosexual or transgender.  First, in Bostock v. Clayton County, Georgia, a county employee was fired for conduct “unbecoming” a county employee after he joined a gay softball league.  Second, in Altitude Express, Inc., et al.  v. Melissa Zarda and William Allen Moore, Jr., a skydiving company fired an instructor days after he said he was gay.  Third, in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., a funeral home fired an employee who presented as a male when she was hired after she informed her employer that she planned to “live and work full-time as a woman.”

The Court ruled that the plain language of the statute – prohibiting discrimination “because of” sex – incorporates discrimination based on sexual orientation or transgender status.  The Court stated:  “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.”  For example, if an employer fires a male employee for being attracted to men, but does not fire a female employee for being attracted to men, the employer’s decision is based on sex.  The Court explained that “homosexuality and transgender status are inextricably bound up with sex . . . . because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

Concluding that the plain meaning of the text of the statute is clear, the Court found no need to look to legislative history or other sources to interpret the law.  However, the Court rejected the employers’ arguments that prohibiting discrimination on the basis of homosexuality or transgender status was not the intent of Congress at the time the law was passed in 1964:  “But to refuse enforcement just because of that, because the parties  before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”

Finally, the Court noted two other issues raised by the employers relating to the impact of this decision, but concluded they were not before the Court at this time.  First was the balance between religious liberty and Title VII.  The Court explained that while in the future employers may be able to raise an argument that free exercise of their religion interferes with their compliance of Title VII, none of the employers before the Court had presented that argument.  Second, employers raised concerns that extending Title VII to protect transgender employees will cause societal upheaval with bathrooms, locker rooms and dress codes.  Indeed, this was a large focus of the oral argument on these cases.  However, the Court stated that this issue was not before the Court and did not address whether a sex-segregated bathroom would violate Title VII:  “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’ …   Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”

The Court’s decision is a landmark ruling for LGBTQ employees throughout the United States.  Under California law, the Fair Employment and Housing Act already prohibits discrimination against employees based on sexual orientation, gender identity, and gender expression, including transgender status.  Thus, this ruling does not change the legal landscape for California employers, but it will allow homosexual and transgender California employees who believe they were discriminated against by their employers to bring lawsuits under Title VII.  In addition, under California law, employers (1) must allow an employee to use the restroom or locker room that corresponds to the employee’s gender identity or expression; (2) are required to refer to employees using the employee’s preferred name, gender, and pronouns, and (3) may not enforce dress codes more harshly against an employee based on their gender identity/expression.

Bostock v. Clayton County, Georgia, United States Supreme Court Case No. 17–1618 (June 15, 2020)

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Photo of Alison Kalinski Alison Kalinski

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful…

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful termination, failure to accommodate, defamation, First Amendment, and due process violations from employees.  In addition, Alison defends schools in litigation on student issues, including disability discrimination, failure to accommodate, breach of contract, and defamation claims. Alison has argued before state and federal courts and the California Court of Appeal and has obtained a workplace violence restraining order to protect employees.

Alison Kalinski also regularly advises independent schools, including religious schools, nonprofit organizations, and public agencies in matters pertaining to employment and students. Alison is a trusted advisor to employers in all aspects of employment issues, including the hiring and termination of employees, the interactive process and leave requests, discrimination and harassment issues, assisting with investigations, overtime, and drafting employee handbooks and agreements.  In addition to employment advice, Alison counsels schools on student and parent issues, including bullying, student discipline, accommodating disabilities, enrollment agreements, student handbooks, parent and tuition disputes, and subpoenas. Alison especially enjoys working with schools and nonprofit clients by helping them meet their legal obligations while achieving their mission and maintaining the values of their school and organization.

Alison is also an experienced presenter and regularly trains clients on preventing discrimination, harassment, and retaliation in the workplace, accommodating disabilities in the workplace, mandated reporting, and other employment matters.

Prior to joining Liebert Cassidy Whitmore, Alison practiced as a litigator in the New York City offices of two international law firms before relocating to Los Angeles.  At her prior firms, Alison represented large private employers in class action litigation arising from gender discrimination and wage and hour matters, and obtained a full dismissal of all claims in both actions.

Committed to pro bono work, Alison obtained cancellation of removal under the Violence Against Women Act for a victim of domestic violence and sex-trafficking and obtained asylum for a refugee from Cameroon who was tortured for being a homosexual.

While in law school, Alison served as managing editor of the Tulane Law Review.  Upon her graduation magna cum laude, Alison clerked for the Honorable Steven M. Gold in United States District Court for the Eastern District of New York.  Alison is admitted to practice in California and New York.