• Vennum Law

Historic Ruling: LGBTQ+ Workers are Finally Protected Under Title VII

On June 15th, the United States Supreme Court changed the fabric of federal employment

law. The new Bostock v. Clayton County (1) holding brings LGBTQ+ employees within Title VII’s

protection from discrimination based on sex. The decision offers much-needed legal protection

from workplace discrimination against sexual minorities.

Employment Discrimination Under Title VII

The Civil Rights Act of 1964, better known as Title VII, prohibits employment discrimination based on race, color, religion, sex, or national origin. The case City of L.A. Dep't of Water & Power v. Manhart (2) provided a simple test for determining if there was sex discrimination under Title VII. Under the Manhart test, a court asks if an employer treated an employee “in a manner which but for that person's sex would be different." Whether Title VII’s prohibition on sex discrimination should also protect employees from discrimination based on their sexual orientation or gender identity is a question that has divided lower courts. Federal courts within the 4th Circuit (which includes North Carolina) have consistently refused to extend Title VII protections to LGBTQ+ workers.

On the contrary, more liberal courts such as the 7th Circuit (which includes states Illinois, Wisconsin, and Indiana) have found that firing an employee for marrying the same sex is essentially punishing someone for failing to conform to a gender stereotype, which constitutes

unlawful sex discrimination under Title VII. Because the federal circuit courts divided over this issue, among other reasons, the Supreme Court granted certiorari to hear the Bostock case and

resolve the schism.

The lack of protection for the LGBTQ+ community, in general, has led to discriminatory

policies and agendas. One of the most famous examples is the North Carolina HB 2 law that

barred transgender individuals from using the bathroom that corresponds to their gender identity. With North Carolina courts refusing to recognize gender identity and sexual orientation

discrimination as sex discrimination, LGBTQ+ North Carolinians were unable to get legal relief

against HB 2. Even with the repeal of HB 2, LGBTQ+ rights nationwide continue to remain at

risk. The new Bostock holding ensures that sexual minorities at least have legal protection from

workplace discrimination.

The Majority’s Holding

In a 6 to 3 decision, the Supreme Court held that Title VII protects sexual orientation and

gender identity. Justice Neil Gorsuch wrote the majority opinion. The majority reasoned that

when an employer treats an employee differently, due to sexual orientation or gender identity

that unfair treatment is based on an employee’s sex, which Title VII prohibits. The Court further

held that the language of Title VII unambiguously protects LGBTQ+ workers from adverse

employment actions.

What It Means for LGBTQ+ Employees

The historic holding from the Supreme Court means that LGBTQ+ workers can now hold

employers accountable for discriminatory treatment. Specifically, employers can be liable for

any adverse employment action taken against an employee because of sexual orientation or

gender identity. The ruling may also have an impact on other constitutional legal principles. For

example, under the 5th and 14th Amendments, federal courts place greater scrutiny on laws that might be discriminatory based on sex. With the Supreme Court’s recognition that Title VII’s

protected class of “sex” includes LGBTQ+ employees, courts may begin to place greater scrutiny

on laws that unfairly treat sexual minorities. More protection from the federal courts would

finally start to protect LGBTQ+ individuals from blatant discriminatory federal policies, public

school directives, and state laws.


The Supreme Court’s pivotal ruling in Bostock will change the foundation of American

constitutional law. Moreover, the decision will hopefully cause a ripple effect on state and

federal policies that still unfairly marginalize the LGBTQ+ community.

(1) Bostock v. Clayton County, 590 U.S. ____ (2020).

(2) City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978).

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