The United States Supreme Court recently issued a landmark anti-discrimination decision in Bostock v. Clayton County, 590 U.S. ___ (2020). The decision addresses three different cases that were consolidated for hearing before the Supreme Court: Bostock v. Clayton County, Georgia, 723 Fed. Appx. 964 (10th Cir. 2018); Altitude Express, Inc. v. Zarda, 883 F.3d 100 (2d Cir. 2018); and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 884 F.3d 560 (6th Cir. 2018).

Each of these cases involved an employer firing a long-time employee shortly after the employee revealed he or she was either homosexual or transgender. In a 6-3 decision, the Supreme Court in Bostock held Title VII’s prohibition of discrimination on the basis of sex includes the prohibition of discrimination on the basis of sexual orientation or an individual’s status as a transgender person.

Factual Background

Gerald Bostock (“Bostock”) worked for Clayton County, Georgia as a child welfare advocate. After a decade of employment with Clayton County, Bostock began participating in a gay recreational softball league. Shortly thereafter, influential members of the community allegedly made disparaging remarks about Bostock’s sexual orientation and participation in the league. Clayton County fired Bostock for conduct “unbecoming” a county employee.

Donald Zarda (“Zarda”) worked as a skydiving instructor at Altitude Express in New York. Zarda spent several seasons with Altitude Express. Days after revealing he was gay, Altitude Express fired Zarda.

Aimee Stephens (“Stephens”) worked at R.G. & G.R. Harris Funeral Homes in Michigan. Upon getting the job, Stephens presented as a male. In her sixth year with the company, Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”

Each employee sued under Title VII alleging unlawful discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). In Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his lawsuit could be dismissed as a matter of law. 723 Fed. Appx. 964 (10th Cir. 2018). In Zarda’s case, the Second Circuit held that sexual orientation discrimination does violate Title VII and allowed his case to proceed. 883 F.3d 100 (2d Cir. 2018). In Stephens’ case, the Sixth Circuit held Title VII bars employers from firing employees because of their transgender status. 884 F.3d 560 (6th Cir. 2018). The U.S. Supreme Court granted certiorari to resolve the disagreement in the lower courts as to the scope of Title VII’s protections for homosexual and transgender persons. 587 U.S. ____ (2019).

Analysis

The Supreme Court’s task was to determine the ordinary 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.” § 2000e-2(a)(1). The Court analyzed the term “sex” in terms of both the term’s definition and in the context of what Title VII states regarding the term “sex.” The Court noted Title VII states a “but-for” causation standard—that is, in order to state a claim for relief under Title VII, the termination must have been but-for the sex of the individual. The Court read Title VII to stand for a straightforward rule—an employer violates Title VII when it intentionally fires an individual employee based in part on sex.

The Court held “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court came to this conclusion based on a series of hypothetical employment situations, including a situation in which an employer fires a transgender person who was identified as male at birth but who now identifies as female. The Court stated that if the employer retains an otherwise identical employee who was identified as female at birth, then the employer intentionally penalizes a person identified as male at birth for traits or actions it tolerates in an employee identified as female at birth. The Court reasoned the employee’s sex, therefore, plays an “unmistakable and impermissible role in the discharge decision.” According to the Court, “[j]ust as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.” Therefore, to the Court, discrimination on the basis of sex is inextricably linked to an employee’s status as a homosexual or transgender individual.

The Court cited three cases in support of its holding—Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), and Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75 (1998). The Court took three lessons from these cases: (1) it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it; (2) the employee’s sex need not be the sole or primary cause of the employer’s adverse action; and (3) an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.

The employers did not dispute the fact that they fired the employees at issue for being homosexual or transgender. Rather, the employers argued discrimination on the basis of being homosexual or transgender does not involve discrimination because of “sex.” The employers also argued that, in the course of regular conversation, the employees would state that they were fired because of their status as homosexual or transgender individuals, not because of any notion of their “sex.” However, the Court stated such arguments rested on a mistaken understanding of the type of cause of action the law protects in a Title VII case. In other words, Title VII simply asks whether sex was a but-for cause in the termination; it does not focus upon what information seems most relevant in answering questions posed during the course of regular conversation.

The employers (and Justices Alito and Kavanaugh, dissenting) also attempted arguing that an employer who discriminates based on homosexuality or transgender status does not intentionally discriminate based on sex; however, the Court held an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. This is, in fact, the key to the Court’s holding—that one’s identity as a homosexual or transgender person is inextricably tied to one’s “sex” as defined in Title VII.

Takeaway

This is a landmark decision for many individuals and communities throughout the United States. For many years, courts across the country had come to varying conclusions about whether Title VII protected individuals from discrimination on the basis of their sexual orientation or status as transgender. Through Bostock, the United States Supreme Court has now made clear that homosexual and transgender individuals are entitled to the protections of Title VII.