For a number of years, there has been a question as to whether federal employment laws protected individuals from discrimination on the basis of their sexual orientation or gender identity. This question has been increasingly prevalent following the legalization of gay marriage nationally in 2015. On June 15, 2020, the Supreme Court answered this question in Bostock v. Clayton County, Georgia, holding that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act of 1964, as amended.

The decision was made after three very similar cases, all of which dealt with the employment rights of homosexual and transgender individuals, were heard by the Supreme Court. In each case, an employer terminated a long-time employee after the employee revealed that they were homosexual or transgender. In the first case, Gerald Bostock was employed by Clayton County, Georgia as a child welfare advocate. He began participating in a gay recreational softball league and was terminated for conduct “unbecoming” of a county employee shortly thereafter. Similarly, Donald Zarda worked for a skydiving company in New York for several seasons and was terminated days after revealing he was homosexual. In the third case, Aimee Stephens worked at a funeral home in Michigan. When she was hired, she identified as male, but she was diagnosed with gender dysphoria after two years with the company, and was terminated shortly after notifying her employer that she was planning on transitioning her gender.

In its ruling, the Supreme Court articulated the following rule regarding sex discrimination under Title VII: “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex.” The Court reasoned that “an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.” As is the case with other protected classes and characteristics under Title VII, it is not required that the plaintiff’s sexual orientation or gender identity be the sole or primary cause of the adverse employment action; rather, an employer may not treat sexual orientation or gender identity as a motivating factor when selecting, evaluating, or compensating applicants or employees. As such, it is a violation of Title VII for employers to take action or to put in place rules that take sex—which includes sexual orientation and gender identity—into account. It is important to note that violation of Title VII can be established even if the employer did not know the individual’s sexual orientation or gender identity.

Notably, the Court did not address a number of questions that will almost surely follow this decision, such as—how employers are expected to address policies regarding “sex-segregated bathrooms, locker rooms, and dress codes . . . .”? The Court also noted that “the interaction of religious liberty [and] Title VII are questions for future cases ....”

The Court’s decision in Bostock will surely have an impact on employers moving forward. Employers located in jurisdictions that do not have state laws recognizing sexual orientation or gender identity as protected under their current state antidiscrimination laws, which would include Nebraska, but who are covered by Title VII, should promptly review and amend their policies and practices to ensure compliance with the Court’s interpretation of Title VII. If you have any questions regarding these recent developments or need assistance with your policies, please contact a member of Koley Jessen’s Employment Group.

^{Special thanks to our Summer Associate, Katie Curtiss for her help in writing this article.}

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