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In a decision released June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees. Title VII already prohibited discrimination based upon an individual’s race, sex, national origin, or religion.  Trial and appellate courts across the country had been inconsistent in their conclusions as to whether Title VII’s prohibition on sex discrimination also prohibited discrimination against gay or transgender employees.

Last year, the U.S. Supreme Court took up a case from the Eleventh Circuit Court of Appeals, the intermediate appellate court that governs federal cases over the states of Florida, Alabama, and Georgia, related to allegations of discrimination on the basis of sexual orientation.  The case that reached the U.S. Supreme Court was Gerald Bostock v. Clayton County, Georgia and involved a county employee who was terminated shortly after he joined a gay recreational softball league.  The Eleventh Circuit Court of Appeals had ruled that Title VII did not prohibit employers from discrimination based upon sexual orientation, and dismissed Bostock’s suit.  The nine Supreme Court Justices reversed that decision 6-3, with conservative Justices John Roberts and Neil Gorsuch siding with the court’s four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.  Justices Samuel Alito and Brett Kavanaugh filed dissenting opinions.

Justice Gorsuch drafted the majority opinion, which also addressed two unrelated cases of a homosexual skydiving instructor and transgender employee at a funeral home who were both fired.  The majority opinion held that “sex” includes “sexual orientation” and “gender identity” stating:

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.  The answer is clear.  An employer who fires 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.”

As a result of this landmark case, employers should ensure that their existing anti-discrimination policies are updated to prohibit any discrimination or harassment based on sexual orientation or gender identity. Additionally, management should be careful that decisions regarding promotions, terminations, compensation, and job duties are made without consideration of an employee’s gender identity or sexual orientation.

If you have any questions regarding this decision or need assistance updating your Company’s policies, please contact Roger W. Feicht, Holly Griffin Goodman, or another member of Gunster’s Labor and Employment Practice Group.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.


About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 12 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, and its headquarters in West Palm Beach. With nearly 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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