May 11, 2021

Volume XI, Number 131


May 10, 2021

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U.S. Supreme Court Rules Title VII Protects Gay and Transgender Employees from Employment Discrimination

On June 15, 2020, in a landmark decision, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of sexual orientation or transgender status. This decision comes five years after the Court legalized same sex marriage. The Supreme Court’s 6-3 decision was authored by conservative Justice Neil Gorsuch.

Title VII bars employers from discriminating against employees on the basis of sex, race, color, national origin and religion. This decision, which resolved three cases—Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and RG & GR Harris Funeral Homes v. EEOC—focused on the definition of “sex” in Title VII. The plaintiffs argued that discriminating against gay and transgender employees was inherently based on their sex, thus violating Title VII. However, the defendant employers argued that Congress did not intend for Title VII to protect gay and transgender employees when it passed the law.

The decisions of the intermediate appellate courts demonstrated a split among the federal appellate courts as to the meaning of “sex” within the context of Title VII: The Eleventh Circuit Court of Appeals, in the Bostock case, determined that the law did not prohibit employers from firing employees for being gay. In contrast, the Second Circuit, in the Zarda case, determined that employer sex discrimination in violation of Title VII includes sexual orientation discrimination, while the Sixth Circuit, in the RG & GR Funeral Homes case, held that Title VII bars employers from firing employees based on their transgender status. (In 2017, the Seventh Circuit Court of Appeals—which governs Wisconsin, Illinois, and Indiana)—held in the Hively v. Ivy Tech case that sexual orientation discrimination is a form of sex discrimination within the meaning of Title VII.

While the Court acknowledged that sexual orientation and transgender status are distinct concepts from sex, discrimination based on these factors constitutes illegal sex discrimination. Justice Gorsuch stated, “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. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. Only the written word is law, and all persons are entitled to its benefit.”

According to the majority opinion, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other is a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The Court also indicated that its decision does not reach into any bathroom, locker room or dress code questions that may be raised as a result of this opinion. The Court also declined to address how the decision might affect religious employers, as that issue was not before the Court.

While this decision is momentous on a national level, Wisconsin employers should recognize that discrimination based on sexual orientation has long been illegal under the Wisconsin Fair Employment Act. Moving forward, discrimination on the basis of sexual orientation or gender identity will also be recognized as illegal under federal law.

© 2021 Davis|Kuelthau, s.c. All Rights ReservedNational Law Review, Volume X, Number 170



About this Author

Laurie Meyer, Davis Kuelthau, labor and employment lawyer

As a member of Davis|Kuelthau’s Labor and Employment practice group, Laurie combines her experience in human resources management with over 20 years of employment law practice to provide creative, strategic counsel and defense to employers of every size on a full range of employment issues. This depth of experience allows her to provide legal assistance to employers in ways that minimize risk and avoid litigation and support long-term business goals. Laurie takes a practical approach to solving employment problems for her clients and achieving their goals in a cost-...

 Abby S. Tilkens Davis Kulthau Associate Labor Employment School and Higher Education


Abby is a member of the firm’s Labor & Employment team and the School and Higher Education practice group in Green Bay. Her practice primarily focuses on counseling education clients in school law and labor and employment issues.

Prior to joining the firm, Abby attended the University of Wisconsin-Madison and was a student athlete on the Women’s Golf team before heading off to Valparaiso University School of Law on a full scholarship. While at Valparaiso, Abby was a member of the University School of Law Honors program, an associate editor of the Law Review and the...