In the midst of the COVID-19 pandemic, an economic crisis that is predicted to be as bad as the great depression, and unrest over racial inequality and police brutality that is giving birth to a global movement for social change, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia (Case No. 17–1618) on June 15, 2020 and announced with finality that an employer who fires an individual merely for being gay or transgender violates Title VII.   The decision was a shock to some and long overdue for others.  Regardless of one’s political or social leanings, it is without question that the decision is an important one that will have far reaching consequences throughout the country.

Summary of Facts and Lower Court Rulings.

The Bostock case is actually a consolidation of three separate cases. In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer 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 (“Title VII”). The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. The Supreme Court granted review of the cases and its decision puts to rest the split of authority between the Circuits as to whether Title VII protects LGBTQ employees from discrimination in the workplace.

Supreme Court Analysis.

Justice Neil Gorsuch wrote the majority opinion (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan).  In a direct and no-nonsense fashion, Justice Gorsuch said that few facts were needed to appreciate the legal question the Court faced:

Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.

The Court said that with this in mind, their “task is clear.”  The Court had 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.” To do so, the Court said it had to orient itself and examine the key statutory terms in Title VII when adopted in 1964, and examine the impact of those terms on the cases before them considering the Court’s precedents.

The only statutorily protected characteristic at issue in the cases and which the parties dispute was based on, is “sex.”  The employers claimed that the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees countered by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. However, candidly, the Court said that the parties’ debate over the meaning of “sex” in 1964 is not the real focus of the analysis.  According to the Court, the question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of” sex but it doesn’t matter if other factors besides sex contribute to the action.  Also, when analyzing a discrimination case under Title VII, the focus is not on class or group (men v. women) treatment, but rather individual treatment.

Prior precedent has made clear that Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” (Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).  The Court said that the statute’s message for the cases before it was equally simple and momentous: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” 

To help illustrate its reasoning, the Court provided a number of hypotheticals.

  • Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
  • Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

As the Court pointed out, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Also, it doesn’t matter that when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. For example, the Court said consider this hypothetical:

  • “Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.

The Court said the same is true in the cases before it.  “When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play – both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

Finally, an employer musters no better a defense by responding that it is equally happy to fire male and female employees  who are homosexual or transgender. According to the Court, “Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”

The Bostock decision ends years of conflicting decision between federal Circuit courts as to the coverage of Title VII protections against discrimination for LGBTQ employees.  For those employers who are not located in a state that already provided those protections under state law, now is the time to ensure that policies, practices, and trainings address these protections.

The employment lawyers at Weintraub Tobin have years of experience counseling, training, and defending employers in all areas of employment law, including harassment and discrimination under Title VII and California law.  Please reach out to us if we can assist you in your employment law compliance.