The U.S. Supreme Court Catches Up With California, Extending Federal Anti-Discrimination Protections Under Title VII To Gay And Transgender Employees
Posted June 18, 2020

In a breakthrough ruling issued on June 15, 2020, a 6-3 majority of the United States Supreme Court resoundingly announced that the prohibition against “sex” discrimination codified in Title VII of the Civil Rights Act (the federal law dealing with discrimination prevention) prohibits discrimination based on sexual orientation and gender identity. Specifically, the Court held, “An employer who fires an individual merely for being gay or transgender violates Title VII.”

This momentous holding stems from conflicting decisions among the lower federal courts; to resolve those conflicts, the Court heard three cases on a consolidated basis: Bostock v. Clayton County, Ga.; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. The consolidated ruling resolves each underlying case. The full text of the U.S. Supreme Court’s opinion can be found here.

As California employers already know, California’s discrimination law -- the Fair Employment and Housing Act (FEHA) – has included sexual orientation and transgender status as protected characteristics for years. Under federal law, however, the outcome was less than clear. Why, you might ask? Well, under Title VII it is, “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” This is a far more limited list of protected categories than is found in California law.

The relevant federal case law interpreting Title VII’s terminology holds that laws must be “interpreted in accord with their ordinary public meaning at the time of their enactment.” Thus, the employers in the three underlying cases noted above argued, among other things, that because Title VII did not explicitly list “sexual orientation” or “transgender status” as protected classifications in its actual text, intentional discrimination against employees based on their those classifications could not be a basis for Title VII liability.

To that argument, the Court replied, “When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”

The employers also contended that the Court should not make this decision at all, noting that if Congress sought to change Title VII to include sexual orientation and transgender status protections, Congress could do so in the legislative process by amending Title VII. The Court found that argument equally unpersuasive: “. . . when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”

The Court then explained that its ruling is necessary because, “. . . discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” As an example, the Court noted that if an employer “fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The bottom line for employers nationwide is that “[a] statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the impact of the employer’s intent in making its decision: “Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.”


As an employer, it is critical that all employment-related decisions be based upon business issues, not personal characteristics. Employers must heed the Court’s “simple but momentous” reminder that “[a]n individual employee’s sex (or any other protected characteristic) is “not relevant to the selection, evaluation, or compensation of employees.”

Remember to base all employment-related decisions on legitimate business issues, rather than on the protected categories applicable to individual employees. Watch for any unexpected impacts of your decisions upon protected categories, even where there was no discriminatory intent. Carefully document the business reasons for your decisions, both for the file as well as to the employee(s).


As mentioned above, California employers already know that the list of protected characteristics under the FEHA is much broader and more expansive than the federal list of protected characteristics specified in Title VII.

California’s list includes, among others protected characteristics: race (including protective hairstyles and hair texture), religious creed (including religious belief, observance, dress or grooming practices), color, sex, sex stereotype, pregnancy, childbirth or related medical conditions (including breast feeding), age (40 years or over), sexual orientation, gender, gender identification and expression, transgender status, transitioning employees, physical or mental disability, medical condition (including cancer), genetic characteristics, genetic information, family care, marital status, registered domestic partner status, enrollment in any public assistance program, status as military, a veteran or qualified disabled veteran, status as an unpaid intern or volunteer, ancestry, citizenship, national origin, protected medical leaves (including a request for or approval of leave under applicable leave of absence laws), domestic violence victim status, political affiliation, or any other classification protected by law (“Protected Characteristics”).

Remember also that California law prohibits discrimination based on the perception that an employee has any of those protected characteristics, or is associated with a person who has or is perceived as having any of those protected characteristics.

For further questions regarding this ruling, discrimination prevention policies or trainings, or any other employment law questions, contact the employment attorneys at LightGabler for further assistance.

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