On June 15, 2020, the United States Supreme Court issued its long-awaited and landmark Opinion in three consolidated cases – Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, all collectively argued in October 2019 – addressing whether the prohibition against “sex” discrimination in Title VII of the Civil Rights Act of 1964 encompasses protection for employees discharged on the basis of sexual orientation or transgender status. In a 6-3 majority decision authored by Justice Gorsuch and joined by Chief Justice Roberts as well as Justices Breyer, Sotomayor, Ginsberg, and Kagan, the Court plainly and unambiguously held that an employer who fires an individual merely for being gay or transgender violates Title VII.
In reaching its decision, the Supreme Court undertook a textual analysis of the plain meaning of the terms “sex,” “discriminate” and “individual.” It also relied on several prior cases, the most noteworthy of which was Oncale v. Sundowner Offshore Services, an Opinion from 1998 which then held for the first time that same-sex harassment was prohibited under Title VII. In concluding here that an employer violates Title VII when it intentionally fires an individual employee based in part on sexual orientation or transgender status, the Court indicated that discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. Accordingly, such actions fall within the scope of Title VII, as already written.
Throughout its opinion, the Court rejected not just opposing textual arguments and “conversational” interpretations of the word “sex,” but also a range of other arguments that the employers put forward in the cases, including the position that it cannot be discrimination if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. The Court held that any employer doing so would still be acting unlawfully, as such a rule would be based on “sex” all the same.
However, the strongest of the opposing arguments – and one principally advanced by the dissent authored by Justice Alito – was the position that if protections based on homosexual and transgender status were intended to be included within Title VII, they would have been expressly stated in the legislative text. The fact that they were not – the argument went – dictated that it was up to Congress to legislate those terms into the statute for there to be such protection. The Court rejected this view because it felt there was no ambiguity in the term “sex.” In so concluding, the Court was also able to dismiss any deep inquiry into the legislative history of Title VII as being an unnecessary interpretive effort.
Notably, while it may be a detail which slips by most readers of the Opinion, the Court also made clear that it doesn’t matter if other, lawful reasons are a part of a decision to terminate the employment of an employee if it also is based on sexual orientation or transgender status. In other words, if being gay or transgender is even a part of the calculus behind an employer’s decision – if it is simply one motivating factor – it is unlawful. This distinguishes the Court’s view of this type of discrimination from certain other types of discrimination, like age discrimination, where age must generally be the “but-for” cause of the employment decision to be unlawful.
Needless to say, the Supreme Court’s opinion in these consolidated cases meaningfully changes and expands the scope of civil rights protection in the United States in a way we arguably have not seen since the Civil Rights Act itself first was enacted. Moreover, the impact of the Court’s opinion is likely to reasonably extend and reverberate throughout the world of employment law in other ways, and for a long time to come.
For one thing, while the Bostock case turned on separations in the traditional sense, the Court’s analysis equally will apply to other adverse employment actions besides separation, such as demotions, salary reductions, etc. Additionally, retaliation (something also encompassed by Title VII) for complaints about unlawful discrimination due to sexual orientation or transgender status will almost assuredly now also be viewed as protected activity. Moreover, harassment in the workplace based on sexual orientation or transgender status – again, now viewed by the Court as being based on “sex” – is likely to be viewed as similarly unlawful under federal law. These are the most immediate additional applications of the Court’s opinion today, but there will probably be others going forward, including as relating to housing, education, and more.
Of course, some employers currently do business in a state or locality where there already are legal protections of the type which the United States Supreme Court today recognized under federal law. For those employers who are not, however, we recommend the immediate consideration of a range of compliance practices, including but not limited to an extensive review and revision of anti-discrimination, retaliation, and other appropriate policies, as well as consideration of appropriate training or re-training of your entire workforce about those policies.
