LGBTQ Rights Expanded Bostock v. Clayton Cty

U.S. Supreme Court rules Title VII Civil Rights Act prohibition on employment discrimination based on sex includes sexual orientation and transgender status. Bostock v. Clayton County.

On June 15th, 2020, the Supreme Court opined on whether employment discrimination based on sexual orientation and gender identity is included under the umbrella of sex discrimination barred by Title VII of the Civil Rights Act. Title VII explicitly prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. The Court had granted certiorari in three cases, two of which were affirmed, and one reversed and remanded. This 6-3 decision for the petitioners signifies that people cannot be fired for something that the opposite sex would not be fired for, including joining a certain sports team or saying that you are attracted to your same sex.  The opinion, written by Justice Gorsuch (a Trump appointee), will undoubtedly change the course of many future cases in the Civil Rights arena and set expectations for employers going forward.

The first case came from the U.S. Court of Appeals for the Eleventh Circuit. Gerald Bostock filed a lawsuit against his employer, Clayton County, Georgia, for alleged discrimination based on sex. He was fired from his job as a child-welfare advocate after he joined a gay recreational softball league; the County claimed his conduct was “unbecoming” for an employee. Bostock v. Clayton County Board of Commissioners, 723 Fed. Appx. 964 (11th Cir. 2018). The second case also involved discrimination based on sexual orientation. Donald Zarda, a skydiving instructor for Altitude Express, sued his employer after they fired him just days after he mentioned he was gay. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018). Unlike Bostock, the Second Circuit Court of Appeals held that discrimination based on sexual orientation was a violation of Title VII. Id. The third case, considered by the Sixth Circuit, differed in that the alleged discrimination was based on the employee’s identity as a transgender woman; however, it was still argued as discrimination based on sex. On behalf of Aimee Stephens, the Equal Employment Opportunity Commission sued her long-time employer, R.G. & G.R. Harris Funeral Homes, for firing her after she wrote a letter to her bosses expressing she no longer identified as a man and planned to begin living as a woman. EEOC v. R.G., 884 F.3d 560 (6th Cir. 2018). Here, the Sixth Circuit held that employment discrimination based on gender identity was also barred by Title VII. Id.

Title VII is violated when an employer “intentionally fires an individual employee based in part on sex.” Bostock v. Clayton Cty., Nos. 17-1618, 17-1623, 18-107, 2020 U.S. LEXIS 3252 (June 15, 2020). The employee’s sex need not be the only reason they were fired, but only part of the employer’s consideration. Id.

An integral part of the decision was resolving the meaning of “sex” as referenced in Title VII. The Court decided that the plain meaning of “sex” itself does not include sexual orientation or gender identity. Id. at *14. However when adding “but-for causation,” the meaning is expanded. This means that to be in violation, the discrimination against an employee would not have occurred “but for” their sex. Id. Holding that it is impossible to discriminate based on sexual orientation or gender identity without contemplating an employee’s sex, the Court deemed the two to be too closely related to be considered separately. Id. at *21.

The Court relied on three precedents to defend their interpretation of the statute. Finding a Title VII violation by a company for refusal to hire women with young children indicated the possibility of some expansion of sex discrimination. Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S. Ct. 496 (1971). Similarly, demanding female employees contribute more to pension funds due to a longer life expectancy was seen as a violation, even though the policy was defended as equal treatment of men and women as groups, City of L.A. Department of Water & Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370 (1978). Lastly, the court in Oncale held that a claim for sexual harassment is valid under Title VII even when the alleged harassment comes from colleagues of the same sex, in this case men. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S. Ct. 998 (1998).

Each of the three employers in Bostock v. Clayton County from the cases mentioned above, argued that when the Civil Rights Act was passed in 1964, many did not expect it to prohibit discrimination against homosexual and transgender individuals. Although this may be true according to the Court, an unexpected result does not automatically imply a contrary meaning. Id. at *43-*47. Another argument raised against expanding Title VII’s application was the policy implication, which the Court quickly rejected as it is Congress’s responsibility to tackle these consequences. Id. at *54.

Joined by Justice Thomas, Justice Alito dissented on grounds that through issuing this opinion, the Court has effectively legislated, rather than interpreted. a statute. Id. (Alito, J., dissenting). The dissent relies on the fact that since the passage of the Civil Rights Act, bills have been introduced in Congress to add both “sexual orientation” and “gender identity,” but neither has passed. Id. at *60. Justice Alito stressed the distinction between “sexual orientation” and “sex,” and argued that the two are not so intertwined as to warrant the Court’s broader interpretation of the statute.

Justice Kavanaugh also dissented as he framed the issue differently than the majority. Instead of the question being whether Title VII as it stands can be interpreted to include sexual orientation and gender identity, as the majority examined, Kavanaugh asked whether Title VII should be expanded to include the new categories. This difference in thought process led him to a conclusion similar to that of Justice Alito; Kavanaugh determined that the responsibility to amend Title VII belongs to Congress, and that the Judiciary has no authority to expand Title VII’s protections. His dissent also cited the bill proposed to expand Title VII that has not yet been passed by Congress, as well as other employment discrimination protections (such as the ADA) that have been enacted by Congress – not the Supreme Court – since 1964. Id. (Kavanaugh, J., dissenting). He warns of a “democratically illegitimate super-legislature” if the Judicial Branch continues to function legislatively. Id. at *157. While Kavanaugh recognized the separation of powers issue, he commended the “important victory” that this decision represents for both homosexual and transgender Americans. Id. at *184.

 

Written by Allyson Smith, 1L at Washburn University, Legal Intern, The Austin Peters Group, Inc. Summer 2020. allyson.smith@washburn.edu

Reviewed by Rebecca G. Crowder, President, SPHR, SHRM-SCP. The Austin Peters Group, Inc. bcrowder@austinpeters.com