scotus rally image A same-sex marriage rally at the U.S. Supreme Court. Photo: Diego M. Radzinschi / ALM

Employers in California have long been prohibited from discriminating on the basis of sexual orientation or gender identity under California's Fair Employment and Housing Act. On June 15, in the midst of Pride Month, the U.S. Supreme Court brought all states in line, prohibiting employers across the nation from discriminating against employees based on their sexual orientation or gender identity.

Bostock v. Clayton County, GA, 590 U.S. ___ (2020), involved the appeals of three separate plaintiffs, each of whom had been terminated by their employer because of the individual's sexual orientation or gender identity. The Supreme Court granted certiorari to decide a circuit split over whether the employers' actions violated Title VII of the Civil Rights Act of 1964, which makes it 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 … sex."

Specifically, at issue in Bostock was whether discrimination based on an employee's sexual orientation or transgender status is "because of such individual's … sex" in violation of Title VII.  The Supreme Court answered this question in a 6 to 3 decision with a resounding "yes."

In reaching this conclusion, the majority relied on a textualist approach, looking solely at the words of the statute and "the ordinary public meaning" of the law. The court reasoned that the word "sex" means either male or female, and an employer violates Title VII "when it intentionally fires an individual employee based in part on sex." This means that if "changing the employee's sex would have yielded a different choice by the employer" then sex was a "but for cause" of the decision and Title VII has been violated. The court held this to be so, even if other factors besides the employee's sex contributed to the decision, and even if the employer treated women as a group the same when compared to men as a group.

Through an example, the court clearly articulated this logic. The court posited an employer with two employees who are both attracted to men and who are, for all intents and purposes, identical, except one is male and one is female. If the employer fires the male employee because he is attracted to men, but would not fire the female employee who is attracted to men, then the employer has acted because of sex in violation of Title VII. In other words, because changing out the sex of the employee would lead to a different outcome, the decision impermissibly discriminates against the employee because of his sex.

The majority rejected the dissent's argument that sexual orientation and sexual identity were not covered by Title VII because Congress did not include those words in the statutory text. The court ruled that Congress's failure to "speak directly to a specific case that falls within a more general statutory rule" does not create a tacit exception to the law. Rather, where Congress establishes a broad rule, courts must apply that broad rule.

The court also was not persuaded by the argument that most people in 1964 would not have expected Title VII to apply to LGBTQ employees. Citing a number of cases throughout history to support its position, the majority explained that this logic is something the court has "long rejected." Indeed, the court pointed out that "many, maybe most, applications of Title VII's sex provision were 'unanticipated' when Congress passed the law in 1964."

Lastly, the court rejected the public policy arguments raised by the dissent and the employers in the case, who argued that the court's ruling would start to fall the dominoes of expanding protections in other areas and could result in the infringement of other statutory and constitutional rights. The court explained that it was addressing only one narrow question. It expressly left open the possibility that an employer could assert a defense under Title VII on the basis of the employer's First Amendment right to free expression of religion. The court also expressly stated that it was not reaching any conclusions concerning the legality of sex-segregated bathrooms or other similar policies.

The Impact of the Supreme Court's Decision on Businesses

Across the nation, the Bostock opinion likely will lead to an increase in discrimination charges filed with the EEOC and, ultimately lawsuits, brought against employers based on sexual orientation and gender identity discrimination. In some states, we may see a shift in cases being filed more frequently in federal rather than state court, particularly since federal law now provides protections that many state laws do not. Businesses also are likely to see increased activity at the state and federal level to expand LGBTQ protections into other areas. While the Court took pains to stress that it was not deciding issues concerning sex-segregated bathrooms, locker rooms and dress codes, the court's opinion will no doubt be cited in support of those advocating against such policies in the workplace and beyond.

For California employers, the Supreme Court's decision may not have a direct impact on day-to-day operations in the short term. California employers covered by Title VII already should be in compliance with state anti-discrimination laws, which cover employers with five or more employees and previously prohibited discrimination based on sexual orientation and gender identity. Nevertheless, employers in all 50 states should review their employment, nondiscrimination, and anti-harassment policies to ensure they align with the Supreme Court's decision. Likewise, employers should update their anti-discrimination and anti-harassment training materials to include Title VII's newly announced protections for LGBTQ employees and remind their employees that discrimination in the workplace, of any kind, is not permitted.

Emily Burkhardt Vicente is a partner with Hunton Andrews Kurth in Los Angeles. She co-chairs the firm's labor and employment group and has a national practice focusing on complex employment and wage and hour litigation. She may be reached at ebvicente@HuntonAK.com.

Ryan J. Evans is an associate with Hunton Andrews Kurth in Los Angeles. He may be reached at revans@HuntonAK.com.