Resolving a split among the Circuit Courts, the United States Supreme Court, in Bostock v. Clayton County., Ga. (Bostock), ruled that firing an employee on the basis of sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964 (Title VII).


In a consolidation of three separate cases, the Supreme Court considered the legality of firing an employee on the basis of sexual orientation or gender identity. In the Eleventh Circuit case, Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. In the Second Circuit case, Altitude Express fired Donald Zarda days after he mentioned being gay. And, in the Sixth Circuit case, R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, but later informed her employer that she planned to “live and work full-time as a woman.” Each of these employees sued, alleging sex discrimination under Title VII. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay. In contrast, the Second and Sixth Circuits allowed the employees’ claims to proceed. The Supreme Court took up the issue to resolve the disagreement among the Circuits. 

Supreme Court Decision

Under Title VII, employers may not fail to hire, refuse to hire, or terminate the employment of an individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, color, religion, sex, or national origin. The limited issue before the Court in Bostock was whether an employer can fire an employee for being homosexual or transgender.

Justice Gorsuch, in writing the majority opinion, looked to the dictionary definitions of the language in Title VII to determine “whether an employer can fire someone simply for being homosexual or transgender.” He concluded that, “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.” Justice Gorsuch argued that the word “sex” means either male or female. Under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” All that matters, according to Justice Gorsuch is whether “changing the employee’s sex would have yielded a different choice by the employer.” As an example, Justice Gorsuch explained that, if an employer terminates a female employee for being in a relationship with another woman, but would not terminate a male employee for being in a relationship with a woman, the employer has discriminated against the female employee on the basis of her gender. In other words, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Further, Justice Gorsuch rejected the idea that because Congress did not address sexual orientation or transgender status specifically in Title VII, Title VII does not protect homosexual or transgender employees. Justice Gorsuch made it clear that discrimination against such employees “necessarily entails discrimination based on sex; the first cannot happen without the second.”

While the majority opinion appears to be quite expansive, the full impact is still unclear. Justice Gorsuch emphasized that the decision is specifically that an “employer who fires an individual merely for being gay or transgender defies the law.” The ruling did not address other employment issues that may arise under Title VII, such as sex-segregated bathrooms or dress codes. In fact, Justice Gorsuch noted that such issues “are questions for future cases.” The same is true for questions involving the relationship between Title VII and other federal or state laws, such as Title IX, including constitutional provisions protecting religious freedom.

Takeaway for Employers 

Clearly, employers who fire employees on the basis of sexual orientation or transgender status now risk a Title VII complaint. Because the Court’s ruling is limited to this very specific issue, however, the implications for other employment issues, including those relating to employee benefits, is uncertain. However, prudent employers should address any employment or benefits decisions based on an employee’s sexual orientation or transgender status with their legal counsel. For example, employers may want to examine eligibility provisions that limit coverage to opposite-sex spouses or exclusions from coverage that may show a disparity based upon sexual orientation or gender identity. We can expect the broader implications of the Supreme Court’s ruling to be determined in future cases.

The intent of this analysis is to provide general information regarding the provisions of current federal laws and regulation. It does not necessarily fully address all your organization’s specific issues. It should not be construed as, nor is it intended to provide, legal advice. Your organization’s general counsel or an attorney who specializes in this practice area should address questions regarding specific issues.