Supreme Court Rules Sexual Orientation Discrimination Prohibited by Title VII
June 16, 2020
By: Stephen B. Stern
In Bostock v. Clayton County, No. 17-1618 (June 15, 2020), the United States Supreme Court held that Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), prohibits discrimination based on sexual orientation and transgender status. In reaching this conclusion, the Supreme Court found that, when an employer discriminates on the basis of sexual orientation or being transgender, it necessarily discriminates at least in part based on that individual’s sex, which is prohibited by Title VII.
The case before the Supreme Court actually was a combination of three cases from different appellate courts – the United States Court of Appeals for the Second Circuit, the United States Court of Appeals for the Sixth Circuit, and the United States Court of Appeals for the Eleventh Circuit. All three cases presented the same general facts – an employee had been employed with his/her employer for an extended period of time and was terminated from employment shortly after disclosing that he/she was gay or transgender. The Eleventh Circuit held that Title VII did not prohibit discrimination based on sexual orientation. The Second Circuit, on the other hand, ruled that Title VII does prohibit discrimination based on sexual orientation and the Sixth Circuit similarly ruled that Title VII prohibits discrimination based on being transgender.
In reaching its conclusion, the Court stated that it needed to determine the “ordinary public meaning” of Title VII’s instruction that makes it unlawful to discriminate on the basis of “sex.” The Court started its analysis by acknowledging that the term “sex” as it was understood in 1964 when Title VII was enacted referred only to biological distinctions between men and women. The Court, however, noted that it also had to look at the phrase “because of,” which precedes the term “sex” in the statute and establishes the statute’s “but for” test for causation. This was significant to the Court because, under the “but for” test, an employer “cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.” (emphasis in original). In other words, “[as] long as the plaintiff’s sex was one but-for cause of th[e] [employer’s] decision[,] that is enough to trigger the law[’s]” prohibition on discrimination. The Court then went on to find that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court explained that, if an employer had two employees, each attracted to men, but one employee was a man and the other employee was woman, and the employer terminated the male employee for being attracted to men, the employer would have discriminated against the male employee based on that employee’s sex. The Court applied the same analysis to transgender individuals, explaining that an employer discriminates on the basis of sex if the employer has two female employees, but terminates from employment the female employee who identified as male at birth if the termination was based on the fact that she previously identified as being a man.
The Court went on to reject the argument that it is not discriminatory on the basis of sex if the employer is willing to terminate both male and female employees who are homosexual or transgender. Although the Court acknowledged that Title VII prohibits conduct where a class of men (for example) is treated different than a class of women, it explained that Title VII also prohibits conduct where an individual is discriminated against based on that individual’s protected characteristic, which was sex in this case.
To further support its conclusion, the Court examined three of its previous decisions. In Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the company allegedly refused to hire women with young children, but hired men with young children, and the company argued that it did not discriminate on the basis of sex because it also considered the criteria of being a parent of young children. The Court rejected that argument because the employer discriminated at least in part by considering a woman’s sex. In Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978), the employer required women to contribute more to the pension fund than men because women tended to live longer and, thus, they were more likely to receive more money from the fund over time. In that case, the Court was not swayed by the employer’s arguments that it was not motivated by animosity and it was trying to achieve equality between the sexes because the employer’s policy failed a very simple test – “whether an individual female employee would have been treated the same regardless of her sex.” Lastly, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), a male employee alleged that he was subjected to harassment by his male co-workers. Although the male employees who allegedly engaged in the harassing conduct did not do so out of a sexual motive, the Court agreed that the plaintiff asserted a viable claim because he allegedly would not have been subjected to such harassment if he were a woman.
From these three cases, the Court gleaned three important lessons that helped drive its decision in the present case. First, it is irrelevant how an employer labels the alleged practice or what motivated it (e.g., in Manhart, the employer alleged it was “life expectancy,” in Phillips, the employer alleged it was “motherhood”). In the case before Court, the employers claimed to be acting based on sexual orientation or being transgender, but, according to the Court, that label did not alter the fact that each employee’s sex was a factor in the outcome. Second, the employee’s sex need not be the sole or primary motivation for the adverse employment action. Rather, Title VII prohibits conduct where sex is one of the bases for the adverse employment action. Third, an employer cannot avoid liability under Title VII by arguing that it treats male and female employees comparably as groups.
While the Court dispatched a number of arguments made by the employers, it acknowledged there could be concerns about its decision potentially violating the religious practices of certain employers. In this regard, the Court noted the ministerial exception in Title VII that exempts the prohibitions in Title VII from “claims concerning the employment relationship between a religious institution and its ministers” and the Religious Freedom Restoration Act. The Court, however, ultimately deferred ruling on how the doctrines protecting religious liberty interact with its ruling regarding sexual orientation and transgender discrimination.
The Supreme Court’s ruling in Bostock is significant because it establishes that discrimination on the basis of sexual orientation and transgender status constitute discrimination on the basis of “sex” under Title VII and, thus, such discrimination is prohibited by Title VII. This decision is significant also because it ends the previous split in authority on this issue, as courts had reached different outcomes on this very issue. Moreover, the Court’s decision establishes uniform protection for individuals based on sexual orientation and being transgender. Up to this point, with the lack of clarity under Title VII, prohibiting discrimination on the basis of sexual orientation and transgender status often was a matter for state and local governments, which left members of the LGBTQ community with inconsistent protections under the law, typically based on geographic location. For those employers that have not previously applied their anti-discrimination policies and practices to sexual orientation and transgender status, updates to those policies and practices should be made. With that said, although the Court clearly ruled that discrimination based on sexual orientation and transgender status constitute sex discrimination in violation of Title VII, the Court also left open the possibility of revisiting the issue and potentially establishing exceptions where such discrimination would not violate Title VII based on the ministerial exception and/or the Religious Freedom Restoration Act.