Bloomberg Law
June 15, 2020, 8:28 PM

LGBT Workers Shielded From On-Job Bias, U.S. Supreme Court Says

Greg Stohr
Greg Stohr
Bloomberg News

A divided U.S. Supreme Court ruled that federal law protects gay and transgender workers from job discrimination in a watershed decision that gives millions of LGBT people in dozens of states civil rights they had sought for decades.

Justice Neil Gorsuch and Chief Justice John Roberts joined the court’s four liberals in a 6-3 majority Monday, interpreting the longstanding federal ban on sex discrimination in the workplace to cover sexual orientation and gender identity.

“Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” Gorsuch wrote for the court. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

The dispute tackled a central irony in the fight over LGBT rights: Even though the Supreme Court legalized same-sex marriage nationwide in 2015, LGBT people in much of the country still could have been dismissed from their jobs.

The decision will have a broad impact. More than half the U.S. states don’t cover sexual orientation and gender identity through their own anti-discrimination laws. More than half the nation’s 8 million LGBT workers live in those states, according to the University of California at Los Angeles School of Law’s Williams Institute.

The ruling comes even after President Donald Trump shifted the court to the right by appointing Gorsuch and Justice Brett Kavanaugh. The ruling is a defeat for Trump’s administration, which argued that Congress didn’t intend to cover sexual orientation or gender identity when it enacted the law at the center of the case, Title VII of the 1964 Civil Rights Act.

Trump had little reaction to the ruling, telling reporters that
“some people were surprised” and “we live with their decision.”

Kavanaugh joined Justices Samuel Alito and Clarence Thomas in dissent.

Gorsuch said that, while the legislators who drafted the law “might not have anticipated their work would lead to this particular result,” the language of Title VII was clear. The measure bars discrimination on the basis of “sex” but doesn’t explicitly mention sexual orientation or gender identity.

Read more: Aimee Stephens, Supreme Court Transgender Bias Plaintiff, Dies

“The limits of the drafters’ imagination supply no reason to ignore the law’s demands,” Gorsuch wrote. “Only the written word is the law, and all persons are entitled to its benefit.”

Alito said in his dissent that the majority was acting like a legislature, usurping Congress’s role. “A more brazen abuse of our authority to interpret statutes is hard to recall,” he wrote.

Alito also said the ruling could have unforeseen consequences, potentially affecting bathroom and locker room access, women’s sports, university housing and hiring by religious groups.

Gorsuch said the court wasn’t addressing bathrooms and locker rooms or the extent to which an employer’s religious rights might in some cases override the ban on discrimination. He pointed to a federal religious-freedom law that he said “might supersede Title VII’s commands in appropriate cases.”

‘Tenacity and Grit’

In a separate dissent, Kavanaugh said it was “Congress’s role, not this court’s, to amend Title VII.” Kavanaugh also added an unusual celebratory note, calling the ruling a “tremendous victory” for gay and lesbian people.

“Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Kavanaugh wrote. “They have exhibited extraordinary vision, tenacity, and grit -- battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

The ruling may affect legal challenges to a rule the Department of Health and Human Services finalized Friday that removed women seeking abortions and LGBT people from the Affordable Care Act’s non-discrimination protections. The rule allows health-care workers, hospitals, and insurance companies that receive federal funding to refuse to provide or cover any services to those people.

James Esseks, director of the American Civil Liberties Union’s LGBT and HIV Project, said in a media conference call that Monday’s decision, while “sweeping and wonderful,” still doesn’t provide all the protections under federal law that LGBT people are seeking.

Some federal civil-rights laws don’t contain a ban on sex discrimination, including those protecting access to public accommodations and recipients of federal funding, he said. A bill called the Equality Act, passed by the House but stalled in the Senate, would fill those gaps, Esseks said.

Three Lawsuits

The justices were considering two sexual-orientation suits and one gender-identity suit. The lead case involved Gerald Lynn Bostock, who worked as a child-welfare services coordinator for Georgia’s Clayton County and was fired in 2013 after becoming involved with a gay recreational softball league.

The ruling means Bostock’s suit in federal court in Georgia can go forward. The county says his sexual orientation wasn’t a factor in his dismissal, pointing to an internal audit of the funds he managed.

The high court decision also allows claims involving Altitude Express, which allegedly fired skydiving instructor Donald Zarda because he was gay. Zarda died during the litigation in a base-jumping accident, but the executors of his estate continued to press the suit in federal court in New York.

In the gender-identity case, R.G. and G.R. Harris Funeral Homes Inc. and owner Thomas Rost fired Aimee Stephens from a position as a funeral director two weeks after she disclosed plans to return from a 2013 vacation as a woman. The company said Stephens, who had worked there as a man for six years, would have been in violation of its dress code, which requires men to wear a suit and women to wear a skirt and suit jacket.

Stephens died May 12, as the Supreme Court was deliberating over her case. The justices’ ruling upholds a federal appeals court decision that said the company violated her rights.

The cases are Bostock v. Clayton County, 17-1618; Altitude Express v. Zarda, 17-1623; and R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, 18-107.

(Updates with Gorsuch quote in third paragraph)

--With assistance from Shira Stein.

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Joe Sobczyk at

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© 2020 Bloomberg L.P. All rights reserved. Used with permission.

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editor responsible for this story:
Joe Sobczyk at