June 16, 2020 - Announcements

Protecting Pride: Supreme Court Holds Title VII Prohibits Workplace Discrimination on the Basis of Sexual Orientation and Gender Identity

In the midst of Pride month, the Supreme Court of the United States has issued a landmark civil rights decision, holding that Title VII prohibits employers from discriminating on the basis of sexual orientation and gender identity. Writing for a six-Justice majority in Bostock v. Clayton County, Justice Neil Gorsuch explained that an employer who fires an individual for being gay 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.”[1] The Court’s opinion resolves inconsistent interpretations of Title VII in courts across the country. And the Court’s reading of Title VII provides anti-discrimination protection to many LGBT workers in states and cities that had not yet promulgated such protections.

Background

Until recently, courts had unanimously read “because of … sex” in Title VII as not prohibiting discrimination on the basis of sexual orientation and gender identity. Although many states and local governments have expanded their anti-discrimination laws to extend workplace protections to sexual orientation and gender identity, many have not. LGBT employees in those jurisdictions have been stuck in a reality where, as one court put it, an employee could theoretically “be married on Saturday and then fired on Monday for just that act.”[2]

Despite several U.S. Supreme Court decisions laying the groundwork for extending Title VII’s protections to LGBT employees, the Supreme Court had not previously addressed whether the federal statute covered sexual orientation or gender identity. In the absence of Supreme Court guidance, a split resulted in the federal circuits, with several courts of appeals recognizing that Title VII’s prohibition against “sex” discrimination prohibited discrimination on the basis of sexual orientation and gender identity, while others continued to hold it did not. 

To resolve this circuit conflict, the Supreme Court granted review in three cases. The first, Bostock v. Clayton County, involved a man who was fired for being gay after his employer, the Child Welfare Services Coordinator for the Clayton County Juvenile Court System in Georgia, found out about his participation in a gay recreational softball league.[3] The second, R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., involved a funeral home worker who presented as a male when hired but was fired six years later when she announced her intention to live as a woman.[4] The third, Altitude Express, Inc. v. Zarda, involved a skydiving instructor who, after several seasons with his employer, was fired within days of revealing that he was gay.[5]

The Court's Decision

Writing for the Court, Justice Gorsuch (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) assumed, as the employers argued, that the word “sex” in Title VII referred to the biological distinctions between male and female. But that, the Court said, was “just a starting point”: “The question isn’t just what ‘sex’ meant, but what Title VII says about it.”[6] Title VII prohibits an employer from firing an individual based in part on the employee’s sex. And, the Court reasoned, “it is impossible” to discriminate against a person for being gay or transgender without taking the employee’s sex into account.[7] The Court thus concluded that an employer that discriminates against an employee for being gay or transgender “inescapably intends to rely on sex in its decision-making.”[8]

Justice Gorsuch offered several examples to illustrate how decisions based on those characteristics were inextricably tied to sex. In one, he imagined an employer with a policy of firing any employee known to be gay. If an employee comes to an office party with their wife, whether they will be fired hinges entirely on the sex of the employee. So, explained Justice Gorsuch, even if the employer’s “ultimate goal” was to discriminate on the basis of sexual orientation, it must, “along the way, intentionally treat an employee worse based in part on that individual’s sex.”[9]

That was so, the Court held, even if the employer (or the employee) would describe the termination as being based on sexual orientation or transgender status. The Court explained that liability under Title VII does not turn on how one might label an employer’s action. Pointing to its past decisions, the Court noted that an employer’s rule requiring women to pay more into a pension fund than men could not be saved by calling it a “life expectancy” adjustment, nor could a policy against hiring mothers (but not fathers) of young children be defended as one based on “motherhood.”[10]

The Court also held that sex need not be the sole or primary cause of the adverse employment action. Whether another factor is at play—even if it played a more important role—has no significance to the question of whether Title VII liability attaches.

Finally, the Court rejected the notion that an employer could escape liability by treating all male and female gay and transgender employees equally. Because Title VII prohibits treating an “individual” differently because of their sex, Justice Gorsuch explained that an employer that fires both a man and a woman for being gay or transgender “doubles rather than eliminates Title VII liability.”[11]

Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh filed separate dissents. Both dissents accused the Court of legislating, reading into Title VII protections not included in the text as understood when passed in 1964. Although Justice Gorsuch, writing for the Court, acknowledged that the drafters of Title VII likely did not anticipate the Court’s result, the broad language they chose—“because of … sex”—required it: “When the express terms of a statute give us one answer and extratextual considerations suggest another,” he wrote, “it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”[12]

Practical Implications

Under the Court’s decision, that benefit is now available to nearly all LGBT employees in the United States.[13] The decision brings federal law in line with the numerous states and localities that already protect sexual orientation and gender identity. Most of these laws cover small employers that are not subject to Title VII. Many companies already have policies and practices prohibiting discrimination against LGBT individuals; indeed, hundreds of companies joined amicus briefs in the Supreme Court supporting the employees’ position. But employers should continue to review their policies and practices to ensure against discrimination on the basis of sexual orientation and gender identity.

The Court’s decision left open several issues. The Court did not address how doctrines protecting religious liberty might interact with Title VII’s protections. Nor did it decide whether employer sex-specific restroom or changing facility policies would violate that law. Both questions were for future cases. The meaning of other federal statutes that prohibit discrimination because of sex likewise remains unresolved. Justice Alito’s dissent predicted that the Court’s decision is “virtually certain to have far-reaching consequences.”[14] He attached an appendix listing dozens of laws that may be affected, including Title IX, the Fair Housing Act, and the Equal Credit Opportunity Act. Companies with activities potentially affected by these open questions should review their practices with an eye on whether changes are warranted in light of the Court’s decision.

 


[1] Bostock v. Clayton County, Georgia¸ 590 U.S. ___, slip op. at 2 (2020).

[2] Hively v. Ivy Tech Community College, 853 F.3d 339, 342 (7th Cir. 2017).

[3] Bostock v. Clayton Cnty, 2017 WL 4456898 (N.D. Ga. 2017); affirmed Bostock v. Clayton Cnty. Bd. of Commissioners, 723 F. App'x 964 (11th Cir. 2018).

[4] Equal Employment Opportunity Comm'n v. R.G. & G.R. Harris Funeral Homes Inc., 100 F. Supp. 3d 594 (E.D. Mich. 2015); summary judgment granted, 201 F. Supp. 3d 837 (E.D. Mich. 2016); reversed, 884 F.3d 560 (6th Cir. 2018).

[5] Zarda v. Altitude Express, Inc., No. 2:10-cv-04334 (E.D.N.Y. 2014); affirmed, 855 F.3d 76 (2d Cir. 2017); reversed on rehearing en banc, 883 F.3d 100 (2d Cir. 2018).

[6] Bostock at slip op. at 5 (2020).

[7] Id. at 9.

[8] Id. at 11.

[9] Id. at slip op. at 11.

[10] Id. at slip op. at 14.

[11] Id. at slip op. at 12.

[12] Id. at slip op. at 2.

[13] 42 U.S. Code § 2000e(b). Note: “Title VII covers employers with 15 or more employees.”

[14] Bostock at slip op. at 44 (Alito, J., dissenting).