In a landmark decision authored by Justice Neil Gorsuch and released on June 15, 2020, the Supreme Court of the United States held that “an employer who fires an individual merely for being gay or transgender violates Title VII.” Title VII has long since made it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The 6-3 decision in Bostock v. Clayton County, Georgia,1 made clear that Title VII’s protections against discrimination “because of sex” included protecting against discrimination based on a person’s sexual orientation and/or transgendered status. While there were two dissents, the Court’s opinion focused on the “the straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment,” to resolve these cases.
The Court acknowledged that all three Plaintiffs in the consolidated cases had similar experiences – each time, “[a]n employer fired a long-time employee shortly after the employee revealed that he or she [was] homosexual or transgender – and allegedly for no reason other than the employee’s homosexuality or transgender status.” Plaintiff Gerald Bostock was an award-winning child welfare advocate in Clayton County, Georgia before he was terminated for “conduct unbecoming” after joining a gay softball league. Plaintiff Donald Zarda was a skydiving instructor in New York who was fired days after mentioning he was gay. Plaintiff Aimee Stephens worked at a funeral home in Garden City, Michigan for six years, presenting as a man; shortly after telling her employer that she planned to “live and work full-time as a woman,” she was terminated and told “this is not going to work out.” Notably, while determining the true reason for an adverse employment action can be incredibly complicated, in these cases, all three employers admitted that they fired the employees for being gay or transgender – but argued that Title VII did not protect against even intentional discrimination based on homosexuality or transgender status. In deciding the cases earlier, the lower courts split on their holdings. The Eleventh Circuit (Mr. Bostock) held that Title VII did not prohibit employers from firing employees for being gay, and allowed the suit to be dismissed as a matter of law. In contrast, the Second Circuit (Mr. Zarda) and Sixth Circuit (Ms. Stephens) allowed the Title VII-based claims to proceed. The Supreme Court took and consolidated these cases to resolve the ever growing circuit split.
Rooted in analysis from a textualist-based point of view, the Court’s opinion appears to fully understand the impact of its decision. Specifically, in its opening paragraph, the Court said:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
The Court explained that in the employers’ arguments they were “forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy.” But in the Court’s view, there was no need to reach beyond the plain language of Title VII to conclude that homosexual and transgender employees are included in its protections. The Court clarified that “when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extra-textual consideration.”
The Court addressed the traditional “but-for” analysis regarding causation and was clear that “[w]hen it comes to Title VII, … a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one butfor cause of that decision, that is enough to trigger the law.” (emphasis added). Relying on Webster’s Dictionary, the Court asked: “What did ‘discriminate’ mean in 1964?” In answering the question, the Court held that “it meant then roughly what it means today.” Accordingly, treating a person worse than others that are similarly situated equates to discrimination. Relying on past precedence, the Court said that in “disparate treatment” cases like Bostock, “the difference in treatment based on sex must be intentional.” The Court held that “an employer who intentionally treats a person worse because of sex–such as by firing the person for actions or attributes it would tolerate in an individual of another sex–discriminates against that person in violation of Title VII.”
The Court rejected the argument that an employer could escape Title VII liability by treating all homosexual and transgender employees alike and state that “an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.” This is because such a policy will necessarily include discrimination based on sex. “By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”
Notably, it is still unclear how Bostock will apply to religious employers. For now, the decision does not carve out any employers that would be exempt from its ruling. However, it is still possible that religious organizations may have a defense to Title VII’s protections if they oppose employing homosexual or transgender persons for religious reasons. The Bostock opinion hinted at the conflict, citing prior holdings that the First Amendment can bar the application of employment discrimination laws between religious institutions and their officials and citing to the religious Freedom Restoration Act of 1993 (RFRA). The Court explained that “[b]ecause the RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.” Moreover, Justice Gorsuch has previously suggested (in his 2018 concurrence to the majority opinion in Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission) that religious employers should possess broad exemptions from anti-discrimination laws, if the laws contradicted their own deeply held religious beliefs. The Supreme Court has granted certiorari in Fulton, Sharonell, et. al. v. Philadelphia, PA, et. al., for next term, which will present the question as to whether religious organizations have a first amendment right to refuse placement of foster children with a same-sex couple. That decision is likely to indicate what kind of exemptions religious employers are entitled to post-Bostock.
Although employers may not know whether an employee is transgender or gay, it is important that employers understand their obligation to avoid discrimination “because of sex” under Title VII includes ensuring that they do not discriminate against employees based on their sexual orientation and/or gender identity. Employers should also be cognizant of state laws that require additional protections. In light of the Bostock decision, employers should update their handbooks, policies, and practices immediately to prohibit discrimination based on sexual orientation and/or transgender status. Further, employers should consider conducting training for employees and managers on these newly articulated protections afforded under Title VII. We will continue to monitor and report as there are relevant updates.