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Supreme Court Win

Our Supreme Court Win

"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.”

Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020).

The Story 

Partner Brian Sutherlandserved as lead counsel at the U.S. Supreme Court for Gerald Bostock, the plaintiff in the landmark case of Bostock v. Clayton County, Georgia, which banned workplace discrimination against LGBTQ people nationwide.

Prior to Bostock, employees could be fired on the basis of their sexual orientation or gender identity in several states, but Brian and his co-counsel persuaded the Supreme Court that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from workplace discrimination too. The Bostock case not only affirms LGBTQ rights, but also human rights.

Brian Sutherland Speaking to Press After Supreme Court Argument
Brian J. Sutherland speaking to press after Supreme Court argument.

Gerald Bostock was fired from his job at Clayton County as a volunteer coordinator for the court appointed special advocate (CASA) program, a nationwide program that provides volunteer advocates for the best interests of children in juvenile proceedings. Gerald was accused of mismanaging program funds after it was revealed that he participated in a gay recreational softball league in Atlanta. Believing that he was fired simply because of his sexual orientation but without an attorney to represent him, he filed a lawsuit under Title VII of the Civil Rights Act of 1964 seeking to vindicate his rights. Because of the importance for LGTBQ rights throughout the country, the Supreme Court’s decision was highly anticipated.

However, at that time, precedent held that Title VII did not cover discrimination based on sexual orientation, only discrimination based on sex. After becoming Gerald’s attorney, Brian Sutherland revised the lawsuit and argued that Title VII should be interpreted to cover sexual orientation discrimination for several reasons, including that a person cannot discriminate against someone because of that person’s sexual orientation without first considering that person’s sex. The Eleventh Circuit Court of Appeals rejected these arguments, but Brian Sutherland prepared and submitted a petition for certiorari to the U.S. Supreme Court, which granted review and consolidated Gerald’s case with another case from New York and one from Michigan involving gender identity discrimination. 

Brian J. Sutherland Speaking at the National Press Club after Oral Argument at the Supreme Court of the United States

Clayton County and the other employers argued strenuously that Title VII could not include sexual orientation discrimination because none of the legislators who passed it in 1964 could have expected it would be applied that way. 

But Brian Sutherland and the other lawyers involved succeeded in persuading the U.S. Supreme Court that the plain language of the law should control. Writing for a 6-3 majority, Justice Neil Gorsuch agreed that “only the written word is the law, and all persons are entitled to its benefit.” The Court also explained in depth why a statute must be interpreted according to its plain language, regardless of whether those who passed the law might have expected that application, affirming a mode of analysis commonly referred to as “textualism.” Representing Gerald Bostock as lead counsel at the Supreme Court, Brian Sutherland authored the briefs that helped convince a 6-3 majority of the Court to hold that Title VII does in fact prohibit workplace discrimination based on sexual orientation and gender identity. He and the other lawyers involved were successful in persuading the Court that, even though Congress may not have expected the sex discrimination provision of Title VII to cover sexual orientation when it passed the law in 1964, proper statutory interpretation requires that it be interpreted that way. Writing for the majority of the Court, Justice Neil Gorsuch agreed, holding that “only the written word is the law, and all persons are entitled to its benefit.

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