The Lawletter Vol 46 No 1
An employer that discharges an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964, the Supreme Court held 6-3 in one of the last decisions of its October 2019 term. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). Title VII contains the well-known prohibition of discrimination in employment against an individual “because of” the individual's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Writing for the majority, Justice Gorsuch explained 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. Thus, sex plays a “necessary and undisguisable role” in such decisions—precisely what Title VII forbids.
Three cases were consolidated for this appeal. Each one started with an employer discharging a long-term employee soon after the employee revealed that he was homosexual or gender-transitioning—and allegedly for no other reason. In Bostock v. Clayton County Board of Commissioners, 819 F. App’x 891 (11th Cir. 2020), the employee had been a county child welfare advocate for 10 years with an excellent performance record. After he joined a gay recreational softball league, however, influential community members allegedly began making negative comments about his sexual orientation and the “optics” of his playing in a gay athletic league. Shortly thereafter, he was discharged for conduct unbecoming a county employee.
In the second case, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc), the employee in question had worked as a skydiving instructor for a private employer. After several successful seasons with the company, he mentioned to a skydiving student that he was gay and just days later his employment was terminated.
The third suit, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), was brought by the Equal Employment Opportunity Commission (EEOC) against a funeral business that had discharged a male employee when, after six years of satisfactory performance as a funeral director, he announced that he was transitioning to live and work as a female. Although the employer had a professional dress code for its public-facing employees of each sex, it required the employee in this case to continue to follow the dress code for men. After the employee wrote a letter stating that upon returning from vacation he would be presenting as a woman, his employment was terminated.
Although the three cases began the same way, they ended differently. In Bostock, the Eleventh Circuit held that Title VII does not prohibit employers from discharging employees for being homosexual, and so the suit could be dismissed as a matter of law. Meanwhile, the Second Circuit concluded in Zarda that sexual orientation discrimination in employment is in fact prohibited by Title VII and, thus, the suit could proceed. Finally, in Harris Funeral Homes, the Sixth Circuit reached a conclusion similar to the Second Circuit's, holding that Title VII prohibits employers from discharging employees because of their transgender or transitioning status. The Supreme Court granted review in these cases to resolve the disagreement among the circuits over the scope of Title VII's protections for homosexual and transgender persons.
Employing a textual analysis, the Court discerned a straightforward rule emerging from the ordinary meaning of the statute's language as it was understood at the time of the law's adoption in 1964: An employer violates Title VII when it intentionally fires an individual employee based in part on the employee’s sex. It does not matter if other factors contributed to the decision; nor does it matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relied in part on an individual employee's sex when deciding to terminate employment—or put differently, if changing the employee's sex would have yielded a different result—a statutory violation has occurred.
As the Court further explained, it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual on the basis of sex. The Court offered as an example an employer with two employees, both of whom are attracted to men. To the employer’s mind, the two individuals are materially identical in all respects, except that one is a man and the other a woman. If the employer were to fire the male employee for no reason other than his attraction to men, the employer would be discriminating against him for traits or actions it tolerated in his female colleague. Put differently, the employer would have intentionally singled out the employee to fire based in part on the employee's sex, and the affected employee's sex would be a cause of his discharge. As another example, the Court hypothesized an employer discharging an employee who was identified as male at birth but who currently identifies as female. If the employer were to retain an otherwise identical employee who was identified as female at birth, the employer would be intentionally penalizing the employee identified as male at birth for traits or actions that it tolerated in the employee identified as female at birth. Again, the individual employee's sex would play “an unmistakable and impermissible role in the discharge decision.” Bostock, 140 S. Ct. at 1741-42.
An employer cannot mount a defense by declaring that it is equally happy to discharge both male and female employees who are homosexual or transgender, the Court continued. Title VII liability is not limited to employers that, 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. So, just as an employer that fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates its Title VII liability, an employer that fires both Hannah and Bob for being gay or transgender does the same.
In summary, the Court stated that these cases involved no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, of necessity, the employer must intentionally discriminate against individual men and women in part because of sex. This has always been prohibited by Title VII's plain terms.
Justices Alito and Thomas dissented, believing that the majority had engaged in outright legislation. Because homosexuality and transgender status are not included in Title VII's list of protected characteristics—race, color, religion, sex, and national origin—and because homosexuality and transgender status are conceptually distinct from sex, they are excluded from Title VII's protections. Put another way, if Congress had wanted to address homosexuality and transgender status in Title VII, it would have referenced them specifically. Justice Kavanaugh also dissented, writing separately to emphasize his belief that under the Constitution's separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to the Court.
Note. One aspect of the Court’s ruling that is not entirely clear is whether bisexual individuals come within Title VII’s protection. Notably, the majority opinion uses only the terms “homosexual,” “gay,” and “transgender.” As Justice Gorsuch wrote, “in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Bostock, 140 S. Ct. at 1737 (emphasis added). Indeed, the term “bisexual” does not appear in the decision until the eighth footnote of Justice Alito’s dissenting opinion. Id. at 1758 n.8. Nor does the majority opinion contain the acronym “LGBT” (lesbian, gay, bisexual, transgender) or any other umbrella term that would include bisexual individuals.
Further, the majority’s reasoning would not appear to support Title VII protection for bisexual individuals. If an employer were to discharge all of its bisexual employees, and only those employees, would the employer be discriminating because of the employees’ sex? A male who is attracted to both males and females would be fired, as would a female who is attracted to both males and females. The same trait—bisexuality—would be treated the same way for both male and female employees. Under the majority’s analysis, this result would seemingly not violate Title VII.
Still, it is difficult to imagine that any court would conclude that even though homosexual and transgender individuals are protected by Title VII, bisexual individuals are not. Therefore, the prudent approach for employers revising their equal employment opportunity policies after Bostock would be to prohibit discrimination on the basis of “sexual orientation” (rather than “homosexuality”) as well as “transgender status.”