Title VII bans discrimination for sexual orientation, transgender status

At our law firm, we defend Colorado employers against employee allegations of discrimination or harassment at work based on sex, sexual orientation or sexual identity. On June 15, the U.S. Supreme Court issued an important sex discrimination case on these issues.

In Bostock v. Clayton County, Georgia, the court held that Title VII of the Civil Rights Act of 1964 – the major federal law prohibiting certain types of employment discrimination – includes within its prohibition of sex discrimination in the workplace negative treatment based on sexual orientation and gender identity.

Until Bostock, while the U.S. Equal Employment Opportunity Commission (EEOC) and some federal circuit courts had held that Title VII protects a person who is gay, lesbian or transgender under Title VII’s ban on sex discrimination (and harassment), some federal circuits did not. (And fewer than half of the states and some local governments have legal protections – Colorado did and does – for these characteristics in the employment discrimination arena.)

The court in Bostock consolidated three cases involving:

• A Georgia county that fired a social worker after finding out he played in a gay softball league
• A Michigan funeral home that terminated a transgender employee after she said she would begin dressing as a woman at work
• A New York skydiving school that discharged a gay instructor after he revealed his sexual orientation

The Trump administration filed legal briefs in the cases taking the side of the employers in opposition to interpreting Title VII to protect the additional characteristics.

In a 6-3 holding that surprised many, Associate Justice Neil Gorsuch wrote in the majority opinion that Title VII’s ban on sex discrimination clearly prohibits firing an employee because they are transgender or gay – that sex “plays a necessary and undisguisable role …” He said that “the written word is the law,” even if Congress did not anticipate this interpretation at the time the law passed.

The court’s simple example is of a theoretical employer that fires a man for being attracted to men but would not fire a woman for attraction to men – different treatment because of sex for the same trait or behavior. Because this job termination is based on sex, it violates Title VII.

Ramifications for Colorado employers

At the first indication of an allegation of employment discrimination or harassment (which Title VII discrimination includes) based on sexual orientation or transgender status, a Colorado employer should speak with an experienced lawyer who has represented employers in discrimination charges under federal and state laws.

Employment discrimination claims and lawsuits involve a complicated interplay of state and federal laws, agencies and courts. Colorado state law banning discrimination based on transgender status or sexual orientation applies to most employers of any size, while Title VII applies to most employers with at least 15 employees. State and federal law governing this issue may involve different legal remedies, deadlines, procedures and other aspects. A knowledgeable attorney can sort out the issues and help the employer to respond effectively, including fierce advocacy before a government agency or court.