Shannon Kelly of Allen Norton & Blue.

On June 15, in the consolidated cases R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC), Altitude Express v. Zarda, and Bostock v. Clayton County, Georgia, the U.S. Supreme Court resolved once and for all a split among federal appeals courts, holding that Title VII's prohibition of employment discrimination based on sex extends to employees discriminated against on the basis of sexual orientation and gender identity.

This ruling represents a significant departure from prior interpretations of Title VII by the U.S, Court of Appeals for the Eleventh Circuit and adds gender identity and sexual orientation to the protected categories covered under current federal employment law. In addition, this decision will impact state anti-discrimination laws, such as the Florida Civil Rights Act (FCRA). Because the FCRA is interpreted by courts consistently with Title VII, it is likely that Florida state courts will follow in the Supreme Court's footsteps in extending FCRA protections in accordance with the court's decision.

However, the ruling specifically left open a potential argument by employers that requiring compliance with Title VII may substantially burden an employer's exercise of religion. The court's decision also declined to address concerns related to sex-segregated bathrooms, locker rooms and dress codes, leaving these issues to be addressed in future decisions.

The 6-3 opinion, authored by Justice Neil Gorsuch, in which he was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, President Donald Trump's first Supreme Court pick defies expectations and charts his own course as a textualist. Gorsuch's opinion is particularly notable in light of his statements during oral argument in these cases in October 2019, in which he commented that "massive social upheaval" could occur from a ruling in favor of the employees. Justices Samuel Alito and Brett Kavanaugh issued dissenting opinions, with Justice Clarence Thomas joining Alito's dissent.

The Bostock and Zarda cases involved the terminations of male employees who allege that they were discriminated against on the basis of their sexual orientation. The petitioner in the Bostock case, Gerald Bostock, was employed as a child welfare services coordinator in Clayton County, Georgia. Bostock alleged that he was falsely accused of mismanagement of public funds after the county learned that he was homosexual, and he was actually terminated for being gay. Bostock brought suit in federal court, alleging that his termination violated Title VII. The county argued in the district court that Title VII does not apply to discrimination based on sexual orientation. The district court ruled in favor of the county, and the U.S. Court of Appeals for the Eleventh Circuit upheld that ruling.

The petition for review in the Zarda case was filed by a New York skydiving company, now known as Altitude Express. After the company fired Donald Zarda, who worked as an instructor for the company, he filed suit alleging that he was terminated in violation of Title VII of the Civil Rights Act of 1964, which bars discrimination "because of sex," based upon his sexual orientation. The district court dismissed Zarda's Title VII claim, reasoning that Title VII does not allow claims alleging discrimination based on sexual orientation. On appeal, the U.S. Court of Appeals for the Second Circuit reversed that holding, concluding that Title VII does apply to discrimination based on sexual orientation.

The Harris case involves a transgender funeral director, Aimee Stephens. Shortly after announcing her intent to live in conformance with her gender identity, Stephens was terminated. Stephens filed suit alleging her termination violated Title VII. Her employer, Harris Funeral Homes, alleged that requiring compliance with Title VII substantially burdened the owners' religious exercise under the Religious Freedom Restoration Act (RFRA) and purported concerns that a transgender employee's presence would present a distraction to serving grieving families. On appeal, the U.S. Court of Appeals for the Sixth Circuit determined both that the employee was entitled to bring suit based on a "because of" sex theory based upon the express language of Title VII and a sex stereotyping theory. Sex stereotyping occurs when an employer discriminates against an employee based upon a preconceived idea about how someone should be, act or behave on the basis of that person's sex.

The majority acknowledged that, while both gender identity and sexual orientation are distinct from sex, terminating an employee due to the employee's sexual orientation or gender identity falls under the "but for" standard for Title VII claims, regardless of other interrelated factors at play. Specifically, the court stated an "employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

Anticipating one of the dissent's primary arguments, the court noted that the drafters of Title VII did not anticipate "their work would lead to this particular result." However, as the court pointed out, the drafters also "weren't thinking about many of the act's con­sequences that have become apparent over the years, in­cluding its prohibition against discrimination on the basis  of motherhood or its ban on the sexual harassment of male employees."

However, the majority concluded that the limits "of the drafters' imagination sup­ply no reason to ignore the law's demands. When the ex­press terms of a statute give us one answer and extratex­tual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit."

Shannon Kelly is a shareholder with Allen Norton & Blue in Miami, a statewide labor and employment law firm. Contact her at [email protected].