On June 15, the U.S. Supreme Court issued a landmark decision that both employers and employees have been awaiting for years: Federal civil rights law protects gay, lesbian, and transgender workers from discrimination in the workplace.
The 6-3 opinion was written by Justice Neil Gorsuch, President Donald Trump’s first Supreme Court nominee. Justices John Roberts Jr., Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined in the majority opinion. Justices Samuel Alito and Brett Kavanaugh dissented, with Justice Clarence Thomas joining Alito’s dissent.
The decision, styled Bostock v. Clayton County, Georgia, involved the consideration of three different cases with similar fact patterns. In each case, an employer fired a longtime employee for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned he was gay. And R.G. & G.R. Harris Funeral Homes fired 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.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The U.S. Court of Appeals for the Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay, and, therefore, Bostock’s suit could be dismissed as a matter of law. The Second and Sixth circuits allowed the claims of Zarda and Stephens, respectively, to proceed.
Title VII states, in pertinent part, 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 with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex[.]” The question presented to the Supreme Court in Bostock was: Does the term “sex,” as used in Title VII, include sexual orientation and gender identity?
The court answered this question in the affirmative. It found that sexual orientation and gender identity are “inextricably bound up with sex … because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” The court provided the following hypothetical to illustrate its point:
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other is a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in its female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.
The court went on to make it clear that the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action in order for liability to arise under Title VII. So long as the employee’s sex is one but-for cause of the challenged decision, the employer is in violation of Title VII’s proscriptions.
Gorsuch’s joining of the majority—and penning of the majority opinion—was a surprise to many, given his historical tendency to side with court’s more conservative justices. But Gorsuch and the majority viewed the legal question presented as a matter of pure statutory interpretation. Because sex is a component of an employee’s gender identity or sexual orientation, an employer that fires an employee on one of these bases “necessarily intentionally discriminate[s] against that individual in part because of sex,” the court said. And “when the meaning of the statute’s terms is plain,” the court explained, “our job is at an end.”
Although Bostock resolves the direct question to which both employers and employees needed a clear answer, its effect on other laws, regulations, and fact scenarios remains to be seen. Just days before the Bostock decision was issued, the U.S. Department of Health and Human Services issued a rule stating that the Affordable Care Act does not protect LGBTQ individuals against discrimination by health insurance and doctors. On June 22, a coalition of LGBTQ groups sued the Trump administration, arguing that Bostock effectively invalidates the new HHS rule. Whether the Supreme Court’s definition of “sex discrimination” under Title VII will be applied to the ACA’s anti-discrimination provision is uncertain.
Commentators have also called attention to the final few paragraphs of Bostock, wherein the majority leaves open the possibility that Title VII’s protections for LGBTQ individuals could be “supersede[d]” by religious liberty claims, such as claims under Title VII’s ministerial exception or the Religious Freedom Restoration Act. Such claims were not before the Supreme Court in Bostock, but they will almost certainly be raised by employers and explored by courts in the future.
The Bostock decision may additionally affect the interpretation of other federal statutes that prohibit discrimination because of sex, including those addressing housing, public accommodations, women’s sports, and other subjects. Indeed, in his dissenting opinion, Alito noted that more than 100 federal statutes prohibit discrimination because of sex.
The legal ripple effect of Bostock will be seen in the months and years to come. In the immediate term, employers that have not previously maintained policies prohibiting discrimination or harassment on the basis of sexual orientation or gender identity should update their policies and training materials, and should consult with employment counsel regarding implementation and application of these new rules.
Devon Sharp is a shareholder with Munsch Hardt. Her practice focuses on employment law and business litigation. She is a trusted counselor and litigator with a proven track record of advising and defending companies of all sizes and types.
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