Authored by Sarah Greene, Summer Associate
On June 15, 2020, the Supreme Court of the United States (the Court) held that the ban on sex discrimination under Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity. This landmark decision, which the majority labeled as “simple and momentous,” provides new protections for the LGBTQ community in the workplace.
Title VII of the Civil Rights Act of 1964 protects individuals from employment discrimination on the basis of race, color, religion, sex, or national origin. The issue before the court was whether sexual orientation or gender identity fall under the protections of Title VII – namely, the protected characteristic of sex. In the 6-3 decision, authored by Justice Gorsuch, the Court held sex discrimination includes discrimination based on sexual orientation and gender identity, as “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The Court consolidated three cases, all of which shared the common theme of an employer terminating an employee after becoming aware of the employee’s sexual orientation or gender identity. In two cases, employees alleged sex discrimination under Title VII on the basis of their sexual orientation. In the third case, the employee alleged the same, but on the basis of gender identity and transgender status. The Eleventh Circuit in Bostock v. Clayton County held discrimination against one’s sexual orientation is not protected under Title VII’s ban on sex discrimination. The Second Circuit held the opposite in Altitude Express v. Zarda, ruling that Title VII protects against discrimination on the basis of sexual orientation. In the third case, R.G. & G.R. Harris Funeral Homes v. EEOC, the Sixth Circuit similarly held that Title VII prohibits against gender identity discrimination on the basis of sex.
The Court settled the circuit split and held that this adverse employment action on the basis of sexual orientation or gender identity constitutes a form of sex discrimination prohibited by Title VII. Using a textualist approach, the Court reasoned that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”
Under this reasoning, the Court viewed these characteristics to be inseparable from sex, despite recognizing that sex is conceptually different than sexual orientation and gender identity. The Court explained that “[i]f an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.” In the Court’s view, when the employer is willing to accept characteristics of one sex, but not the other, the employee’s sex contributes to the termination. The Court noted when this occurs, as it did in each of the three cases, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
In reaching its decision, the Court applied a but-for causation standard to sex. Under this test, but for the employee’s sexual orientation or gender identity, the employee would not have been fired. The Court explained that under the but-for causation standard “[s]o long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” As a result, the employer cannot insulate itself from liability by simply naming another reason that led to the adverse employment decision.
Justice Alito dissented, with whom Justice Thomas joined, criticizing the majority for functioning as legislators, and thereby usurping the other branches power, when interpreting the statute’s prohibition on sex discrimination to encompass sexual orientation and gender identity, as these are two distinct forms of discrimination. Justice Kavanaugh authored his own dissent, similarly arguing that the Court overstepped its authority and argued that the “ordinary meaning” of sex discrimination does not include sexual orientation or gender identity.
Despite being clear and straightforward in banning discrimination on the basis of sexual orientation and gender identity, the Court left many questions unanswered related to the practical application of the law. For instance, the Court explicitly left open issues under Title VII related to bathrooms, lockers, or other related facilities. Likewise, the Court did not address this law as it relates to religious liberty laws, despite acknowledging how this law may conflict with various statutes that protect religious freedoms and provide religious exemptions. Also unanswered is how this law will impact legislation on employee-sponsored healthcare programs and benefits for LGBTQ employees. These issues will likely be the basis for future actions, and through these decisions, more insights will be available on the scope and practical application of the law.
Despite these unanswered questions, based on the Bostock decision, employers should review and revise their employee handbooks to ensure policies and practices unequivocally prohibit discrimination on the basis of sexual orientation and gender identity. In addition, all employers should provide education and training for their employees on this particular aspect of non-discrimination, as well as other issues specifically relating to the LGBTQ community and the workplace.
If you have any questions, please do not hesitate to reach out to a member of the Morris, Manning & Martin, LLP Employment Team.