On June 15, 2020, the United States Supreme Court, in the case of Bostock v. Clayton County, Georgia, affirmatively answered the long-awaited question of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) protection extends to LGBTQ employees. In a 6-3 decision, the court held that an employer who terminates an employee based on the employee’s sexual orientation or transgender status violates Title VII.
Before the court were three cases where the employers allegedly fired employees simply for being gay or transgender. The first employee was fired for conduct “unbecoming” a county employee after he began participating in a gay recreational softball league. The second employee, a skydiving instructor, was fired after mentioning he was gay. The last employee, who presented as a male when she was hired, was fired from a funeral home after she informed her employer that she planned to live and work full-time as a woman. Each employee filed suit, alleging sex discrimination under Title VII of the Civil Rights Act of 1964.
“In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964.” In Title VII of the Act, “Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.”
The court found that a “straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment resolve[d] these cases.” Therefore, the court was tasked with determining the “ordinary public meaning of Title VII’s command 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 race, color, religion, sex, or national origin.’”
Following a lengthy analysis of the ordinary public meaning of the statute’s terms at the time Title VII was enacted, the court held that:
[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
The court found that the statute’s message for these cases “is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
In addition, an employer cannot escape liability by citing some other factor that also contributed to its challenged employment decision. Rather, as long as the employee’s sex was one cause of that decision, “that is enough to trigger the law.” The court provided the following example:
Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).
As a result, the employee’s “sex need not be the sole or primary cause of the employer’s adverse action.” (Emphasis added.) 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.”
It is also no defense that an employer is “equally happy to fire male and female employees who are homosexual or transgender.” This is because Title VII liability it not limited to employees who treat the class of men differently than the class of women. Rather, Title VII “makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation” of the Act. As a result, “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.”
Although all three employers did not dispute that they fired the employees for being homosexual or transgender, the employers advanced several unconvincing arguments as to why Title VII did not apply.
First, the employers asserted that discrimination based on homosexuality or transgender status is not referred to as sex discrimination in “ordinary conversation.” As a result, if asked by a friend why they were fired, employees would likely say because they were fired because they were gay or transgender, not because of sex. However, “these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause” of the adverse employment action. That “form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause.”
Next, the employers argued that an employer who discriminates based on homosexuality or transgender status does not intentionally discriminate based on sex. The court found this argument equally unavailing, holding that “an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.”
The employers next maintained that because homosexuality and transgender status is not found in Title VII’s list of protective characteristics – race, color, religion, sex, and national origin – they are implicitly excluded from Title VII’s reach. However, the court held that while homosexuality and transgender status are distinct concepts from sex, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Moreover, “when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII.” Therefore, while “sexual harassment” is “conceptually distinct from sex discrimination . . . it can fall within Title VII’s sweep.”
Next, the employers contended that “few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons.” Discounting the employers’ argument, the Court considered that not long after Title VII was passed, gay and transgender employees began filing Title VII complaints. Therefore, it was obvious that at least some “people foresaw this potential application.”
Lastly, the employers complained that if the court were to apply the statute’s plain language, then “any number of undesirable policy consequences would follow,” such as the fear that complying with Title VII’s requirement “may require some employers to violate their religious convictions.” The court rejected this argument pointing to fact that Congress had already “included an express statutory exception for religious organizations in § 2000e-1(a). Moreover, Congress went “a step further” in enacting the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq, which “prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. § 2000bb–1.” The Court stated that because “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. See § 2000bb–3.” In any event, the Court held that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases.” As a result, “while other employers in other cases may raise free exercise arguments that merit careful consideration,” none of the employers in these three cases raised a religious liberty claim in their petitions to the court.
Simply put, an employer who fires an individual for being gay or transgender violates Title VII, even if other factors besides the employee’s sex contributed to the decision. As a result, if the employer intentionally relies, in part, on an individual employee’s sex when deciding to discharge the employee, a Title VII violation has occurred.
About the Author:
Autumn L. Gentry (Member, Nashville) at Dickinson Wright is a Martindale-Hubbell AV Preeminent rated attorney with extensive experience in state, federal, and appellate courts, representing clients throughout all stages of civil and commercial litigation matters, including defending employers in statutory, common law, and contractual employment related claims; defending insurers in bad faith claims and coverage disputes; defending manufacturers in products liability actions; and representing companies in business disputes. Autumn may be reached at email@example.com.