Title VII of the 1964 Civil Rights Act: A Triumph for LGBTQ Rights in 2020

By Travis Clark, Esq.

On June 15, 2020, the United States Supreme Court issued its opinion in Bostock v. Clayton County, Georgia, 590 U.S. (2020) – click here for full opinion of the court.  The case involved three separate cases of discrimination against the LGBTQ community:

  • Gerald Bostock was fired from his job for conduct “unbecoming” of a county employee, shortly after he joined a gay softball league. Bostock worked in Clayton County as a child welfare advocate.  Under his leadership, the county won national awards for its work.  After a decade with the county, he was fired shortly after joining the gay softball league.
  • Altitude Express, a skydiving company, fired Donald Zarda days after he mentioned being gay to a client who he thought would feel more at ease due to the tandem skydive, in which their bodies would be very close and touching.
  • Aimee Stephens was fired from Harris Funeral Homes when she transitioned from male to female, after being employed with the funeral home for six years.

Each of the above filed suit under Title VII of the 1964 Civil Rights Act.  Mr. Zarda and Ms. Stephens have passed away.  Their estates maintained the suit, and Mr. Bostock continued.  Justice Neil Gorsuch wrote the majority opinion for the court in which Justices Ginsberg, Sotomayor, Kagan, Roberts, and Breyer, joined.  Justices Alito, Kavanaugh, and Thomas issued a dissent.  It was a 6-3 decision.

Justice Gorsuch analyzed the issue and boiled it down to an otherwise simple premise:  To fire a person based on their gender identity or sexual orientation, necessarily considers the sex of the person and this is prohibited under Title VII.

The 1964 Civil Rights Act, Title VII provides that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  The opinion turned on the word “sex”.  Gorsuch is a strict constructionist, meaning that he comes back to the plain reading and meaning of a statute.  Based on the words set forth in Title VII, Gorsuch reasoned that to consider firing an individual based on their homosexual or transgender status, it is to necessary to consider their sex in making such a decision.  In other words, if an employer fires a person – in part – because of their sexual identity or sexual orientation, that employer necessarily considers that a man is loving a man, or a male became a female.  The employer must consider the sex of the individual to then conclude to terminate their employment.  This is prohibited under Title VII.  (This is an overly simplistic recitation and does not encapsulate the details in the Court’s reasoning.  You are encouraged to read the full opinion for a complete understanding of the detailed analysis conducted by Justice Gorsuch.)

What this means for each employer in the United States and what this means for the LGBTQ community is that an employee cannot be terminated because of their sexual orientation or transgender status.  To do so violates the 1964 Civil Rights Act and liability will attach.

Kimberly Surratt served for eight years on the executive council and has been the vice chair and then chair of the State Bar of Nevada Family Law Section. In addition, she is the President-Elect of the Nevada Justice Association and the chair of the domestic lobbying committee. She has lobbied with the Nevada Justice Association since 2004.

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