Issue 100 - June 2020
THE COURT REPORT
U.S. Supreme Court’s Decision in Bostock v. Clayton County Extends Title VII Protections to Sexual Orientation and Gender Identity
By Christopher S. Milligan and Kelly A. Trainer, Burke, Williams & Sorensen, LLP
Factual Background
In Bostock, the plaintiff, Gerald Bostock, was an employee of Clayton County, in the Atlanta metropolitan area. He was an employee in the juvenile court system and had good performance records. In 2013, Bostock joined a gay softball league and told others about it at work. In April 2013, Clayton County conducted an audit of funds controlled by Bostock and fired him for conduct unbecoming a county employee. Georgia did not have any laws protecting LGBTQ individuals from employment discrimination. Bostock believed the County had used the issue of allegedly misspent funds as a pretext for firing him for being gay. Ultimately, the Eleventh Circuit upheld the lower court’s dismissal of his claims. In April 2019, the U.S. Supreme Court granted review to Bostock, along with Altitude Express Inc., et al. v. Zarda (“Zarda”), a Second Circuit decision, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (“Harris”), a Seventh Circuit decision. In Zarda, Altitude Express had fired Donald Zarda days after he mentioned being gay, while in Harris, Harris Funeral Homes had fired Aimee Stephens, who had first presented as a male, after she informed her employer that she planned to live and work as a woman.
The Decision
The Court’s 6-3 decision was written by Justice Neil Gorsuch, ruling that Title VII protections do extend to cover sexual orientation and gender identity. The decision primarily involved statutory interpretation of Title VII, rather than constitutional law. The Court focused its decision on the ordinary meaning of the term “sex” used in Title VII at the time of its enactment in 1964. The Court found the term “sex” referred to the biological distinctions between male and female.
The Court applied this definition of “sex” to Title VII’s “but for” causation standard. According to the Court, “causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” The Court explained, this “means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” In other words, “if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.” Applying but-for causation, the Court concluded that discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. An employer who penalizes an employee for being homosexual or transgender violates Title VII because sex is a “but-for” cause.
Title VII provides a remedy to an individual even if the employer’s policy on the whole does not involve discrimination. “An employer who fired an individual for being homosexual…fires that person for traits or actions it would not have quested in members of a different sex. Sex plays a… undisguisable role in the decision, exactly what Title VII forbids.” Therefore, “[b]y discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.” Justice Gorsuch wrote that the decision would not affect other areas of the law outside of Title VII, for example it would not affect Title IX’s protections for access to bathrooms, locker rooms, and dress codes were not before the Court.
The Court also observed that concerns about religious beliefs were not at issue, but were addressed in Title VII’s carve-outs for religious organizations and the First Amendment’s bar on the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” The Court reserved for future cases the implications of the Religious Freedom Restoration Act of 1993. The Court noted that none of the employers were arguing that compliance with Title VII infringed with religious liberties.
Reaction
The Bostock decision is a major victory for LGBTQ rights, equivalent to the legal recognition of marriage equality. Prior to the decision, many states did not prohibit LGBTQ workplace discrimination since Title VII had not been extended to protect their rights. While the decision expressly limited its application to Title VII, it is likely that the decision will ultimately have effect on a broad range of other federal laws that prohibit sex discrimination.
Impact
The Bostock decision will have a large impact in states without a state anti-discrimination law that protects LGBTQ employees, and there will likely be an increase in lawsuits and EEOC complaints in those jurisdictions. However, even before the Bostock decision, California law had already provided significant protections for both sexual orientation and gender identity. In 1979, California became one of the first states to bar discrimination against LGBTQ employees in public employment. Currently, the California Fair Employment and Housing Act (“FEHA”) has prohibits discrimination on the basis of sex, gender, sexual orientation, gender identity, and gender expression. Most recently, in 2017, the FEHA regulations were amended to protect transgender employees. Consequently, it is unlikely that the Bostock decision will have a significant legal impact on California’s existing protections of LGBTQ employees. However, the Supreme Court’s extension of workplace protections to the LBGTQ community serves as an important reminder to all employers of California’s broad protections against workplace discrimination, harassment, and retaliation. Employers are encouraged to take this opportunity to evaluate existing policies, procedures, and practices for compliance with the FEHA’s legal requirements and to promote awareness and inclusivity in the workplace.
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