On June 15, 2020 the U.S. Supreme Court ruled that employers who fire workers for being gay or transgender are violating civil rights laws. In a 6-3 decision, the Supreme Court said federal law prohibits discrimination based on sex, includes sexual orientation and gender identity. The landmark decision concluded that the Civil Rights Act (Title VII) protects gay and transgender individuals from workplace discrimination. Prior to this decision, it was legal in more than half of the states to terminate workers for being gay, bisexual or transgender.

The court reviewed three cases where long-term employees were fired for being homosexual or transgender. Two involved employees who sued after contending they had been fired because they were gay. In Bostock v. Clayton County, Georgia, Gerald Bostock was awarded for his work as a county child welfare coordinator but claimed he was fired after he joined a gay recreational softball league. After he was terminated Bostock lost his medical insurance while he was recovering from prostate cancer.

In the second case, Altitude Express, Inc., et al. v. Melissa Zarda and William Allen Moore, Jr., a skydiving company fired Donald Zarda, a now-deceased skydiving instructor who was gay. In 2010, while working as a skydiving instructor Zarda told a female student that he was gay. He often informed his female clients of his sexual orientation to “mitigate any awkwardness that might arise from the fact that he was strapped tightly” to them during a tandem skydive. However, the woman informed her boyfriend about Zarda’s comment, and after her boyfriend filed a complaint Zarda was promptly fired.

The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., was brought by Aimee Stephens, who had worked for six years as a male funeral director but was fired two weeks after she told her boss that she was transgender and would be coming to work as a woman as she planned to “live and work full-time as a woman.” She died earlier this year, but her case lived on.

At issue before the Court was whether the word “sex” in Title VII protects employees from discrimination on the basis of their sexual orientation or transgender status. The court’s ruling decided it was illegal to fire workers for being gay, bisexual or transgender. The Court stated, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating … based on sex,” Justice Neil Gorsuch wrote. He gave the example of two employees attracted to men — one male, the other female. “If the employer fires the male employee for no reason other than the fact that he is attracted to men,” but not the woman who is attracted to men, that is clearly a firing based on sex, he said. The Court noted they were not extending Title VII to protect transgender employees involving bathrooms, locker rooms and dress codes as these issues were not before the court.

California Fair Employment and Housing Act (FEHA) prohibits discrimination against employees based on sexual orientation, gender identity, gender expression and transgender status. This decision will allow gay and transgender California employees to file a lawsuit under Title VII. Under California law, employers must allow an employee to use the restroom or locker room that corresponds to the employee’s gender identity or expression.