Sexual-orientation discrimination is addressed under federal Title VII as sex discrimination in covered employment settings. The U.S. Supreme Court explained this rule in Bostock v. Clayton County, holding that an employer who fires an individual merely for being gay or transgender violates Title VII.
Current federal context
Older court decisions and articles sometimes described disagreement among federal appellate courts about sexual orientation and Title VII. The Supreme Court’s 2020 Bostock decision supplied the controlling rule for the Title VII firing question before the Court. A current discussion should begin with that decision, rather than treating a regional appellate ruling or an unresolved split as the governing federal law.
Title VII’s text prohibits an employer from failing or refusing to hire, discharging, or otherwise discriminating against an individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin. It also addresses certain classifications that deprive or tend to deprive people of employment opportunities because of those characteristics. The text is available in 42 U.S.C. § 2000e-2.
How sexual orientation fits within Title VII
The statutory text uses “sex,” not “sexual orientation,” as the listed basis. In Bostock, the Court held that intentional discrimination because an individual is homosexual or transgender is discrimination because of sex under Title VII. The Court’s holding is the basis for describing sexual-orientation discrimination as sex discrimination in this federal employment-law context.
The Court also described limits to what it was deciding. It did not purport to resolve every question involving bathrooms, locker rooms, dress codes, other workplace policies, other federal or state laws, or the interaction of Title VII with religious-liberty questions. Those boundaries matter when reading a general summary of the decision.
A separate rule for retaliation
Title VII separately addresses retaliation. Its anti-retaliation provision applies to certain discrimination against employees or applicants because they opposed a practice made unlawful by Title VII or because they made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing. This statutory protection is distinct from the underlying sex-discrimination prohibition.
The EEOC’s retaliation information provides a public agency overview. Applying the statutory language to an individual situation requires attention to the employment setting and facts; this page does not make that determination.
Coverage is not the same in every workplace
For many private and state or local government employers, Title VII’s definition of employer generally includes a 15-employee threshold measured across specified calendar weeks. The definition has other statutory conditions and exclusions. Federal-sector employment is addressed in a separate Title VII provision, and the statute separately addresses certain employment agencies, labor organizations, and training programs.
These coverage rules are important context. A numerical threshold alone does not answer every coverage question, and a general article cannot determine how a statute applies to a particular company, government body, organization, or work relationship.
State and local law may be separate
State and local laws may also address employment discrimination. Their protected characteristics, coverage rules, procedures, and available relief can differ from federal Title VII and may differ by jurisdiction. The EEOC’s Fair Employment Practices Agency information explains that many states and localities maintain their own discrimination laws and agencies.
This article describes federal Title VII only. It does not provide a state-by-state survey, identify a forum, set a deadline, or predict an outcome.
Reading older Title VII discussions
Articles written before June 2020 may contain now-outdated descriptions of circuit splits, proposals to amend Title VII, or claims that federal law did not cover sexual orientation. Those descriptions should be read in their historical context. The current starting point for the federal Title VII rule is the Supreme Court’s Bostock decision and the statutory text.
Official resources
- Bostock v. Clayton County, U.S. Supreme Court
- 42 U.S.C. § 2000e-2, Title VII employment practices
- 42 U.S.C. § 2000e, Title VII definitions
- EEOC sex-based discrimination information
This is a general federal overview. Whether a particular workplace, employment action, or legal system is covered depends on the applicable law and facts.