June 16, 2020
Brian Winterfeldt, Emily Murray and Christian Castro

United States Supreme Court Rules to Prohibit Employment Discrimination Based on LGBTQ+ Status

External Article

This article is hosted away from the Winterfeldt website at

In a profound victory for civil rights in the LGBTQ+ community, the United States Supreme Court has recently ruled that Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of a number of categories, including sex, applies to discrimination based on sexual orientation and sexual identity. The decision covered three cases, each of which concerned an employer who fired an employee for identifying as gay or transgender.  

In the first case, Gerald Lynn Bostock v. Clayton County, the employer fired Gerald Bostock for conduct that was allegedly “unbecoming” of a County employee shortly after it learned that Mr. Bostock had joined a gay softball league. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees on the basis of their sexual orientation. Mr. Bostock’s suit was dismissed as a matter of law.

The other two cases, though similar claims, concluded differently than in the Gerald case. In Altitude Express, Inc. v. Zarda, a male employee was fired days after he mentioned to a customer that he was gay. In R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, an employee, who was presented as male when hired, was fired shortly after she announced that she planned to “live and work full time as a woman.” For both cases, the Second and Sixth Circuits, respectively, allowed the claims to proceed holding that an employer who fires an individual merely for being gay or transgender violates Title VII. The Supreme Court granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for gay and transgender persons.

In making its ruling, The Supreme Court interpreted the statute in accordance with the ordinary public meaning of its terms at the time of its enactment (1964) – “unlawful… for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual… because of such individual’s… sex.” The Supreme Court proceeded on the assumption that the term “sex” referred to the “status of either male or female [as] determined by reproductive biology.” Notwithstanding, as Justice Gorsuch wrote, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He continued, “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.”

In addition to our primary focus on intellectual property matters, in keeping with our core values of diversity and inclusion, Winterfeldt IP Group closely tracks developments relating to legal protections for LGBTQ+ persons. For additional information on our commitment to D&I in the legal industry and larger global community, please reach out to any of the following team members:

Brian J. Winterfeldt  +1 202 759 5833  brian@winterfeldt.law
Emily D. Murray  +1 202 759 5838  emily@winterfeldt.law
Christian Castro  +1 2020 759 5850  christian@winterfeldt.law

download this document as a PDF


* indicates required
/( mm / dd )