Title VII Applies to LBGTQ Workers

The Supreme Court ruled that the Civil Rights Act of 1964 protects gay, lesbian and transgender people from discrimination in employment. The court decided 6–3 that a key provision of the act, Title VII, which bars job discrimination “because of sex,” encompasses both gender identity and sexual preference. 

“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,” Justice Neil Gorsuch wrote for the court. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”1

The majority also rejected the argument that Title VII only forbade discrimination to a class or category of employee, such as men or women. The text of the law clearly states that individuals may claim the protection of Title VII. 

Justices Samuel Alito, Brett Kavanaugh and Clarence Thomas dissented. 

The outcome is expected to affect the estimated 8.1 million LGBTQ workers across the country. Some states already protect such workers under their laws, but other states don’t have laws that address workplace discrimination against them. 

The Results of the Title VII Ruling

Despite the verdict, there is much that the ruling does not resolve. Justice Gorsuch noted that cases remain involving healthcare, participation in school sporting events, sex-segregated bathrooms and locker rooms, and the highly contested issue of religious objections to employing LGBTQ people. 

Such issues may have merit “[b]ut none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today,” he wrote.

The Supreme Court cases involved two gay men and a transgender woman who sued for employment discrimination after they lost their jobs. 

The 6th U.S. Circuit Court of Appeals in Cincinnati, Ohio, had ruled that the firing of a transgender woman constituted sex discrimination under federal law.2

The 2nd Circuit Court of Appeals had ruled in favor of a gay skydiving instructor who was fired because of his sexual orientation. The appeals court ruled it was abandoning its earlier holding that Title VII didn’t cover sexual orientation because “legal doctrine evolves.” The court held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”3

In another case, consolidated in this opinion, the 11th Circuit had ruled against an employee who had been fired, allegedly for his sexual preference.4 That case was reversed by the Supreme Court ruling. 

It is important to note that in the cases heard by the Supreme Court, the protection of Title VII for the employees in question was the gravamen of the court’s decision. All the underlying cases were decided on Title VII grounds only. 

What does Title VII mean for Gallagher clients? 

As Justice Gorsuch wrote, this case does not resolve all issues of note to employers. We can expect a number of rulings in both the near- and long-term future. 

Significantly, however, the three cases decided by the court were remarkable in that Title VII’s applicability to gender identity and sexual preference was the only issue. In one of the three cases, the employer claimed another rationale for the termination: “conduct unbecoming of a County employee.” The conduct in question was the participation of the employee in a gay softball league. 

Applying the same interpretation of Title VII as in prior cases, we would surmise that an employer may still terminate the employment of an individual in a protected class for valid reasons that are not pre-textual, such as a disguise for unlawful discrimination. Moreover, because Title VII is the basis for unlawful sexual harassment claims under federal law, we anticipate the court’s decision will apply to claims for harassment on the basis of sexual orientation and gender identity. Employers should review all applicable policies and update them as needed. 

Employment practices liability insurance coverage routinely applies to claims alleging discrimination on the basis of sex. Many policies already include coverage for claims alleging discrimination on the basis of sexual preference or gender identity, and this ruling should clarify the coverage further. 

It remains important for employers to maintain a prudent system of employee evaluation and discipline, with appropriate recording of all significant events. 
As always, Gallagher professionals are ready to assist in this and other risk management issues.


1 Bostock v. Clayton County, No. 17-1618, 6 (U.S. June 15, 2020); 590 U.S. (2020)

2 R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, et al., Motion to dismiss denied, 100 F. Supp. 3d 594 (E.D. Mich. 2015); summary judgment granted, 201 F. Supp. 3d 837 (E.D. Mich. 2016); reversed, 884 F.3d 560 (6th Cir. 2018); cert. granted, 203 L. Ed. 2d 754 (2019). 

3 Altitude Express, Inc., et al. v. Melissa Zarda, as Executor of the Estate of Donald Zarda, et al., Summary judgment granted, No. 2:10-cv-04334 (E.D.N.Y. March 28, 2014); affirmed, 855 F.3d 76 (2d Cir. 2017); reversed, 883 F.3d 100 (en banc, 2d Cir. 2018) 

4 Bostock v. Clayton Cnty., No. 1:16-cv-001460, 2016 WL 9753356 (N.D. Ga. November 3, 2016); report and recommendation adopted, 2017 WL 4456898 (N.D. Ga. July 21, 
2017); affirmed sub nom. Bostock v. Clayton Cnty. Bd. of Commissioners, 723 F. App’x 964 (11th Cir. 2018); cert. granted, 139 S.Ct. 1599 (2019).


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