In a surprising move that provided a long-awaited victory for the LGBTQ rights movement, the Supreme Court on June 15 ruled 6-3 that existing federal law forbids job discrimination on the basis of sexual orientation or transgender status.
In its 168-page ruling, Justice Neil M. Gorsuch, writing for the majority, stated: “An employer who fires an individual merely for being gay or transgender defies the law. … “Sex plays a necessary and undisguisable role in the decision, which is exactly what Title VII forbids.” He was referring to Title VII of the Civil Rights Act of 1964, which makes it illegal for employers to discriminate on the basis of sex. This ruling clarifies that sexual orientation and gender identity are protected under Title VII.
Until this decision, it was legal in the majority of states to fire workers for being gay, bisexual or transgender. Even after gay marriage became legal in 2015, workplace discrimination continued.
In making its ruling, the Court considered three cases: Bostock v. Clayton County, Ga., No. 17-1618, Altitude Express Inc. v. Zarda, No. 17-1623, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107.
“Justice Gorsuch describes the decision in Bostock as ‘momentous,’ and it assuredly is,” says Garrett Epps, professor emeritus and a regular columnist on the Supreme Court for The Atlantic. “The decision is 6-3, with Gorsuch, one of the court’s hard right members, writing the opinion, and Chief Justice Roberts, who bitterly dissented in the same-sex marriage cases, joining.
“Even Justice Kavanaugh, in dissent, goes out of his way to speak of the LGBT movement with respect,” Epps notes. “This case will, at least for now, put wind in the sails of LGBT legal advocates, and retard the conservative legal movement’s struggle, in tandem with the Trump administration, to reverse course on these issues.” Read his entire Atlantic essay on the decision.
Prof. Michael Hayes, who teaches employment law, adds: “This decision shows the importance of the countless lawyers who have worked for decades on creating a fair and reasonable definition of sex discrimination, including up to this year and this decision.
[It also] shows the continuing importance of the 1989 Price Waterhouse v. Hopkins decision, and why so many continue to owe so much to Ms. Hopkins, who had the courage to challenge the decision to deny her a partnership.”
To see what other scholars think about this historic ruling, join this SCOTUSBlog symposium.