Bostock v. Clayton County: Title VII Protections for LGBTQ Employees
In the landmark Bostock v. Clayton County, No. 17–1618, 590 U.S. ___ (2020), the Supreme Court held that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
In each of three consolidated cases, an employer fired an employee at least in part for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee when began playing a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. R.G. & G.R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed the company 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 employees’ cases shared a common theory: that Title VII’s prohibition of workplace discrimination “because of sex” prohibited discrimination because an employee is homosexual or transgender. Their respective Circuit Courts reached conflicting conclusions. The Eleventh Circuit allowed the dismissal of Bostock’s suit, holding that Title VII does not prohibit employers from firing employees for being gay. The Second and Sixth Circuits, however, allowed Zarda’s and Stephens’ sex discrimination claims, respectively, to proceed under Title VII.
The Court’s Decision
The Supreme Court held that Title VII prohibits an employer from firing or otherwise treating an employee differently because the employee is gay or transgender.
Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The Court determined that a straightforward application of these terms, interpreted using their ordinary public meaning at the time of their enactment, meant that Title VII prohibited discrimination against an employee for being gay or transgender. No. 17–1618 at 4 – 12.
But-For Causation and Intent under Title VII
First, the Court observed the parties agreed the term “sex” in 1964 referred to the biological distinctions between male and female. And in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 350 (2013), the Court held that “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of[.]’ ” The term “because of” incorporates the but-for causation standard. Nassar at 346, 360.
Importantly, the Bostock Court clarified that a termination (or other employment action) can have many but-for causes. Thus, for a termination or other employment decision to violate Title VII, discrimination need not be the only cause of the decision. The Court observed that under Title VII, a defendant employer cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The Court looked to Webster’s New International Dictionary to confirm that the term “discriminate” simply meant “[t]o make a difference in treatment or favor (of one as compared with others).” Id. At 745.
The Court, citing its decision in Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988), further observed that in Title VII “disparate treatment” cases, the difference in treatment based on sex must be intentional. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267. No. 17–1618 at 4-9.
Second, having established the meaning of the law’s operative terms, the Court observed that those terms generate a straightforward rule: An employer violates Title VII’s “because of sex” provision when it intentionally fires an individual employee based in part on sex. The Court emphasized that it makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. No. 17–1618 at 9-12.
Therefore, the Court concluded, the plain language of Title VII forbids discrimination against an employee because the employee is gay or transgender. Because 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 intentionally penalizes an employee for being homosexual or transgender also violates Title VII. The Court emphasized that in this scenario, the discrimination “because of sex” is necessarily intentional. Just 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. No. 17–1618 at 9-12.
The Court then discussed three of its previous cases that supported its analysis of Title VII’s language. In Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the Court held that a company violated Title VII by refusing to hire women with young children, even though the discrimination also depended on other, non-sex factors, like being a parent of young children, and even though the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), the Court held that an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer violated Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the Court held that a male employee could bring a triable Title VII claim based on sexual harassment by co-workers who were members of the same sex.
The Court observed that the lessons in Phillips, Manhart, and Oncale were instructive on the issue before it in Bostock. First, these cases confirmed that it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, for example, the employer could have called its discriminatory rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But the Court emphasized that the employer’s labels and additional intentions or motivations did not make a difference to Title VII, in those cases or in Bostock. The critical point in Bostock was that when an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.
Second, the Court explained that, as shown by these precedents, a plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the Court observed, the employer easily could have pointed to some other, non-protected trait and insisted it was the more important factor in the adverse employment outcome. But in all three cases, sex still was part of the decision. Similarly, in Bostock, the Court found it was of no significance if another factor, like the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Sex was still part of the decision.
Third, the Court observed that these precedents showed that an employer cannot escape liability for discrimination by demonstrating that it treats males and females comparably as groups. Manhart was instructive on this point, as in that case the employer’s policy violated Title VII by requiring women to make larger pension fund contributions than men, even though the policy treated men and women evenly as groups. Applying that rationale to the facts in Bostock, the Court concluded that an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates Title VII even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. No. 17–1618 at 12–15.
The Flawed Arguments that Title VII Does Not Bar Discrimination Because of Homosexual or Transgender Status
The Court then turned to the employers’ various arguments that intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability.
First, the Court rejected the employers’ argument that there was no Title VII violation because plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. This argument failed because conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause.
Second, the Court rejected the employers’ argument that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. The Court concluded this argument failed because an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.
Third, the Court rejected the employers’ argument that discrimination against gay or transgender people was not sex discrimination because an employer could refuse to hire a gay or transgender individual without learning that person’s sex. This argument failed because a refusal to hire because of homosexual or transgender status still turns on sex-based rules. The Court observed that by intentionally setting out a rule that makes hiring turn on sex, the employer violates the plain language of Title VII, regardless of what he might know or not know about individual applicants.
Fourth, the Court rejected the employers’ argument that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically in the statute. The Court concluded that because homosexual and transgender discrimination are covered by the broad rule against all sex discrimination, this argument was inconsistent with the Court’s basic principles of statutory interpretation. Specifically, when Congress chooses not to include any exceptions to a broad rule, the Court applies the broad rule.
Fifth, the Court rejected the employers’ argument that because the policies at issue in Bostock have the same adverse consequences for men and women, a stricter causation test should apply. This argument failed because it essentially came down to a a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII. But this suggestion is inconsistent with the plain language of the statute, which calls for but-for causation. No. 17–1618 at 16-23.
Finally, the Court addressed the employers’ contention that legislative history called for a narrower view of sex discrimination, arguing that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. The Court, citing its decision in Milner v. Department of Navy, 562 U.S. 562, 574 (2011), determined that legislative history had no bearing on this issue, because the language of Title VII was not ambiguous. The Court further explained that while it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers did not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, the employers seemed to say when a new application of a law is both unexpected and important, even if it is clearly commanded by the existing law, the Court should just point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. The Court observed that it had long rejected that sort of reasoning.
Finally, the Court rejected the employers’ policy appeals, which amounted to suggestions that the Court do what it thinks best with the law’s guidance. The Court declined that invitation. No. 17–1618 at 23-33.
In sum, the Bostock Court held that an employer who fires an individual for being gay or transgender violates Title VII. This was a landmark ruling for LGBTQ rights.
Importantly for all types of Title VII cases and other cases involving but-for causation, the Bostock Court clarified that a termination (or other employment action) can have many but-for causes. Thus, for a termination or other employment decision to violate Title VII, discrimination need not be the only cause of the decision. Under a but-for causation standard, discrimination need only be part of the decision. A defendant employer therefore cannot avoid liability just by citing some other factor that contributed to its challenged employment action.
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