June 16, 2020

‘Answer Is Clear’: Title VII Forbids Discrimination Based on Sexual Orientation and Gender Identity

On June 15, 2020, in the month and year that marks the 50th anniversary of LGBTQ+ Pride traditions, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. In the 6-3 decision authored by Trump-appointed Justice Neil Gorsuch, the Court said that Title VII’s message is simple: “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions . . . [and] it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020).

This opinion resolves a circuit split arising from decisions by the Second, Sixth and Eleventh Circuit Courts of Appeal. In each case, an employer fired a long-time employee shortly after the employee disclosed being “homosexual” or “transgender” and allegedly for no reason other than the employee’s sexual orientation or gender identity.

The Supreme Court began its analysis by examining the plain terms of the statute: “Sex” signifies the biological distinctions between a male and a female; “because of” means but-for causation where the defendant cannot avoid liability by citing another factor, in addition to sex, that contributed to its employment decision; “discriminate” means to treat the individual worse than others; and that “individual” signifies the statute applies to an individual and not a “distinguished class.”

The Court then noted that the ordinary public meaning of the statute’s language is straightforward: An employer violates Title VII when it intentionally fires an employee based on sex, no matter if other factors contributed to the decision. “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.” In other words, an employment decision based on sexual orientation or gender identity is necessarily sex-based because, if only the employee’s sex changed but all other characteristics (e.g., attraction to a certain sex or feelings about one’s gender) remained the same, the employer’s decision would change.

The Supreme Court cited to longstanding precedent in support its decision, including Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), where the Court recognized Title VII protections for women with children, and Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978), where the Court held that requiring women to make larger pension contributions than men was discrimination because of sex. As the Court explained, those cases illustrate that it is irrelevant how an employer characterizes its decision making if its employment decision ultimately is based on the employee’s sex. The employers in those cases could have insisted that some nonprotected trait was the more “important factor” for its employment decision — motherhood in Phillips or life expectancy in Manhart, for example. Similarly, the employer in Bostock could have pinned its discharge decision on homosexuality rather than sex. The employer’s label, the Court reasoned, did not change the outcome of Manhart or Phillips, though; so it did not make a difference here, either.

Justice Alito, joined by Justice Thomas, penned the first of two dissents. He critiqued the Court’s decision as invading the province of the legislature: “There is only one word for what the Court has done today: legislation.” He also foreshadowed future disputes, outlining “some of the potential consequences” related to bathrooms and locker rooms, women’s sports, employment by religious organizations, health care, etc., although he explicitly refrained from “suggest[ing] how any should necessarily play out under the Court’s reasoning.” Justice Kavanagh, who authored the only other dissent, also expressed concern about judicial overreach but wrote in conclusion: “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans…They have advanced powerful policy arguments and can take pride in today’s result.”

What does this mean moving forward?

To begin, the decision eliminates a circuit split and clarifies the law, although many state and local laws already provided protections for sexual orientation and gender identity. Beyond this initial clarification, however, litigants may be testing the impact of the decision for years to come. For example, as foreshadowed in Justice Alito’s dissent, we may see challenges under the same First Amendment and Religious Freedom Restoration Act (RFRA) principles that animated the litigation in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). In that case, the Supreme Court ruled that a closely held corporation with religious objections need not offer otherwise required birth control as part of its employer-provided insurance plan. Other issues, such as use of bathrooms and locker rooms, participation in sex-segregated sports, and employment by religious organizations whose tenants conflict the Court’s mandate, may prove challenging for some employers faced with legal obligation to treat both sexes “the same” in work environments that had previously recognized sex-based differences.

In the meantime, however, one thing is clear: To the extent employers had not previously recognized sexual orientation and gender identity as protected characteristics, they must do so now. Thus, at a minimum, employers should review and update their policies to ensure equal employment opportunities are extended regardless of sexual orientation or gender identity. They also should strongly consider providing harassment-prevention training with scenarios that are representative of those reflecting LGBTQ issues; promoting inclusion through LGBTQ diversity efforts, resources, and programs; and incorporating LGBTQ demographics into diversity and inclusion data.

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