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On The Basis of Sex: Supreme Court Holds that Employers Cannot Discriminate Against Employees for Being Homosexual or Transgender

June 17, 2020

On June 15, 2020, the Supreme Court in Bostock v. Clayton County, Georgia, Justice Neil Gorsuch delivered the opinion of the Court (split 6-3) resolving a split of authority among Circuit Courts by holding that Title VII of the Civil Rights Acts prohibits employers from discriminating against employees on the basis of their sexual orientation or gender identity. The Court concluded, “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.”

Impact on Employment Cases Moving Forward

The scope of the Court’s decision is already the subject of great debate among employment lawyers and legal analysts. However, it is clear that, following this decision, it is less likely that adverse employment actions against LGBTQ employees will be found lawful.

The decision is consistent with the position previously taken by the Equal Employment Opportunity Commission (EEOC) that Title VII prohibits discrimination based on gender identity and sexual orientation. However, Circuit Courts, the US Department of Justice, and federal district courts previously reached contrary and/or conflicting decisions on this issue, and some of those decisions may be invalidated if they are not distinguishable. It is clear that the decision will affect other court cases as well as both state and federal legislation.

While the extent of the impact of this decision on employers is yet unknown, it is unquestionable that there will be significant implications for workplaces throughout the country, and may require reversal of some measures that have previously allowed discrimination based on sexual orientation or gender identity.

Employers can take precautions to avoid discriminatory conduct in connection with LGBTQ employees by: prohibiting discrimination based on gender identity and sexual orientation; conveying policies in clear language in employee manuals and displaying the policy elsewhere in the place of employment; providing training to all employees to raise awareness regarding sexual orientation and gender identity issues; providing management training regarding responding to employee complaints regarding sexual orientation and gender identity discrimination; conducting thorough investigations of all complaints of LGBTQ discrimination; and taking remedial action in response to credible allegations of discrimination; among others.

Summary of Decision

The facts leading up to the claims of violations of Title VII in the three cases before the Court are similar. In Bostock, Clayton County, Georgia fired Gerald Bostock for conduct “unbecoming” of a county employee shortly after he began participating in a gay recreational softball league. In the second case, Altitude Express fired Donald Zarda days after he mentioned being gay. In the third case, R.G. & G.R. Harris Funeral Homes terminated Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to live and work full-time as a woman. Although the first two cases hinged on the plaintiffs’ homosexuality and the third on the plaintiff becoming transgender, each of the three cases dealt with the same issue – discrimination based on their sex.

Each of the aforementioned employees sued alleging sex discrimination under Title VII of the Civil Rights Act of 1964. In delivering the majority opinion of the Court, Justice Gorsuch analyzed the “ordinary public meaning” of Title VII. Title VII states that it is “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). Justice Gorsuch first broke down meaning and definition of the “key statutory terms” in turn including “sex”, “because of” and “discriminate against an individual” before assessing their impact on the cases at hand.

In 1964 when Title VII was enacted, “sex” as the employers suggest, referred to “status as either male or female as determined by reproductive biology.” The employees countered by submitting that even in 1964, the term encompassed a broader scope capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. However, because nothing in the Court’s approach to these three cases turned on the outcome of which definition prevails, and because the employees conceded the employer’s definition for argument sake, the Court proceeded on the assumption that “sex” refers only to biological distinctions between male and female. This leads to the next part of the analysis; that the statute prohibits discrimination because of one’s sex. The term “because of” in the statute, means “by reason of” or “on account of”, incorporating a but-for causation standard. This form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, the adoption of the traditional but-for causation standard under Title VII means a defendant cannot avoid liability just by citing some other factor that contributed to the employment’s termination. So long as the plaintiff’s sex was one but-for cause, that is enough to trigger Title VII. The term “discriminate” means to make a difference in treatment of one as compared to others. The statute’s repeated use of the term “individual” means that the focus is on “a particular being as distinguished from a class”. The Court reasoned that these terms generate the rule that an employer violates Title VII when it intentionally fires an employee based on such employee’s sex. It does not matter if other factors contributed to the decision to terminate an employee, if sex was a factor at all. It also is irrelevant if an employer treated women as a group the same when compared to men as a group. If an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee, a statutory violation has occurred.

Here, the Court concluded that the statute’s message for homosexuality and transgender is equally as “clear” as the above meaning for sex discrimination. According to the now leading case law, “an individual’s homosexuality and transgender status is not relevant in employment decisions” and that is because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. The Court provided an example of two employees; both of which are attracted to men. The two individuals to the employer’s mind, are similar in all respects, except that one is a man and another a woman. If the male employee is terminated for no reason other than the fact that he is attracted to men, the employee discriminates against him for traits or actions it tolerates in his female colleague. In other words, the male was discriminated against based on his sex, and the employee’s sex is the but-for cause of his discharge, but the female was not terminated for the same characteristic. As another example, an employer who terminated a transgender person who was identified as a male at birth, but now identifies as a female, but retains an otherwise identical employee who identified as a female at birth, the employer intentionally penalized a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Therefore, the individual employee’s sex plays an impermissible role in discharging the individual.

The Court provided a further example comparing a female sports fan to a man who is a fan of the same sports team. If the employer terminated the female for being a fan of said sports team, and would also terminate the male for being a fan of the same team, Title VII is silent in this respect. However, homosexuality and transgender status are inextricably bound up with sex because to discriminate on these grounds requires an employer to intentionally treat employees differently because of their sex.

This led the Court to its next analysis; that to terminate an employee because the employee is homosexual triggers two causal factors for the termination – both the individual’s sex and another factor, i.e., the sex to which the individual is attracted or with which the individual identifies. Gorsuch then quotes, “But Title VII doesn’t care.” If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of their sex, which has always been prohibited by Title VII.

According to the decision, because the statute requires the termination to be “intentional”, an employer may not defend a violation of Title VII claim by asserting the termination was not intentionally based on sex. The Court explains that an employer who discriminates against homosexual or transgender employees applies sex-based rules. If an employer defends a Title VII claim by claiming it did not perceive themselves as motivated by a desire to discriminate based on a sex, the argument would still fail because nothing in Title VII turns on the employer’s labels or further intentions or motivations for its conduct beyond sex discrimination.

The Supreme Court used three cases as instructive in coming to its determination; Phillips v. Martin Marietta Corp., 400 U.S. 542, in which a Company refused to hire women with young children; Los Angeles Dept of Water and Power v. Manhart, 435 U.S. 702, in which an employer required women to make larger pension fund contributions than men because women tend to live longer; and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, in which a male plaintiff alleged a triable claim for sexual harassment by co-workers of the same sex. The employers were all found to have violated Title VII because the reasoning is based on the individual’s sex, despite the employer’s policies or what it was motivated by.

Although the terms, “homosexuality” and “transgender” are not found in the list of prescribed protected classes under Title VII, the terms are derived from one’s sex. Justice Gorsuch stated, “the first cannot happen without the second.” However the sex based discrimination is manifested, if it is based on one’s sex, it is prohibited discrimination under Title VII. The Court compared this concept to sexual harassment being actionable under sex discrimination under Title VII, despite sexual harassment being conceptually distinct from sex discrimination.

Ultimately, the court concluded that an employer who discriminated against a homosexual or transgender employee intentionally applies sex-based rules, which is in violation of Title VII because an employer who terminates an individual for “traits or actions it would not have questioned in members of a different sex, is exactly what Title VII forbids.

The dissenting opinions focused on the differing view of the textual connotation of Title VII and what the statute was meant to encompass. Specifically, Justice Alito called the majority’s decision, “legislation” and took issue with the ever expanding definition Title VII has now assumed. Because neither “sexual orientation” or “gender identity” are included in the plain meaning of the statute, Title VII does not encompass these concepts. As further support, the dissent identified numerous bills that have been introduced to Congress to add “sexual orientation” and “gender identity” to the proscribed list, but none of the bills passed both Houses. Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution, Title VII’s prohibition on “sex” discrimination has not evolved to include homosexuality or transgender, as this was not the intention once enacted. The dissent stated that the Court’s responsibility is to interpret statutory terms to mean what they conveyed “at the time they were written.” In 1964, Title VII prohibited discrimination because of sex, and was clear that this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. Thus, if “sex” in Title VII means biologically male or female, which the majority recognized, then discrimination because of sex means discrimination because the individual in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of particular gender. The dissent further explained that the comparisons and rationales for the majority’s opinion was distraction and “besides the point”. Because sex based discrimination cases require the plaintiff to establish that sex was a “motivating factor” in the challenged employment action, the question then must become: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharging decision, is that enough to establish that the employer discriminated “because of sex”? The dissent says no unless discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The statute however, cannot reasonably be interpreted this way.

Please contact Michelle M. Arbitrio or Jacqueline Murphy of Wood, Smith, Henning & Berman for additional questions regarding employment law.


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