USSC Says Title VII Protects Against Sexual Orientation and Transgender Discrimination

June 15, 2020

In a historic 6-3 decision entitled Bostock v. Clayton County, the United States Supreme Court finally answered the much-debated question whether Title VII prohibits an employer from discriminating against an employee because of sexual orientation and/or gender identity – the answer is a resounding “yes.”

In ruling that an employer cannot fire an employee for being gay or transgender, the Court reasoned that Title VII’s prohibition against sex discrimination also necessarily prohibits discrimination on the basis of sexual orientation or gender identity. In essence, the Court concluded that by definition an employer commits sex discrimination in violation of Title VII when it fires an employee because he/she is gay or transgender. In other words, “it is impossible to discriminate against a person for being homosexual or transgender without [also] discriminating against an individual based on sex.”

Notably, the majority opinion was written by Neil Gorsuch, a Donald Trump appointee. Justice Gorsuch was joined by Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Sotomayor and Kagan.

In making its ruling, the Court reasoned that the explicit, unambiguous language of Title VII prohibits discrimination because of sex. And “homosexuality and transgender status are inextricably bound up with sex.” Not because homosexuality or transgender status 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 individually employees differently because of their sex.

The Court rejected the argument that Title VII’s prohibition against sex discrimination should be read narrowly, to exclude sexual orientation or gender identity claims. Citing its own precedent, the Court pointed out that it had in the past broadly interpreted Title VII’s prohibition against sex discrimination to prevent an employer from 1) refusing to hire women but not men with young children (Philips v. Martin Marietta Corp., 400 U.S. 542 (1971)), 2) requiring women to make larger pension contributions than men because they were more likely to receive more from the fund (Los Angeles Dept. of Water and Power Manhart, 435 U.S. 702 (1978)), and 3) allowing sexual harassment in the workplace, including same-sex harassment by other male co-workers (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)).

But even more compelling, the Court laid out in painstaking detail why logically the legal standard applied to discrimination claims could result in only one conclusion – that discrimination based on gender identity or sexual orientation by definition also constitutes sex discrimination that is unlawful and not allowed under Title VII.

The Court noted that under the applicable “but-for” causation standard, an employer violates Title VII when it intentionally terminates an employee based in part on the individual’s sex. This is so even if additional factors other than sex contributed to the employment decision. The decisive question for assessing this standard, according to the Court, is whether changing the employee’s sex would yield a different employment result. If it would, then sex is a but-for cause of the employment decision supporting a claim of sex discrimination in violation of Title VII.

The Court used the firing of a Yankees fan as an example of this principle. To the consternation of many Red Sox fans, it turns out that the USSC believes that firing an employee for her allegiance to the Yankees would be unlawful discrimination but only if the employee’s sex was also a reason for the termination. As the Court explained, firing a woman because she was a Yankee’s fan and a woman is still a firing “because of sex” (and violates Title VII) if the employer would have retained a man Yankees fan.

This example likely seems obvious to most people. But the Court also went on to explain that an employer who fires a female employee because she is a lesbian similarly commits sex discrimination even though another factor – namely the sex of the person to which the employee is attracted – also contributed to the decision. Just like in the Yankees example, if this employee were male and similarly attracted to women, the employee would not be fired. In either example, then, changing the employee’s sex would yield a different employment result. Title VII’s causation standard is therefore met, and there may be liability, even though there exists another contributing factor to the decision.

Just as sex is necessarily a but-for cause when an employer discriminates against a homosexual or transgender employee, an employer also “inescapably” intends to discriminate because of sex when it bases its employment decisions on sexual orientation or gender identity, according to the decision. For this point, the Court used the hypothetical of an employer with a policy of firing homosexuals. A model employee arrives at an annual outing and introduces a manager to the employee’s wife, Susan. Whether the policy triggers the firing of this employees depends entirely on whether the model employee is a man or a woman. Applying the employer’s anti-gay policy, the man would not be fired, while the woman would. While the employer’s ultimate goal might actually be to discriminate on the basis of sexual orientation, not sex, “to achieve that purpose the employer MUST along the way, intentionally treat an employee worse based in part on that individual’s sex.” This constitutes sex discrimination that violates Title VII, according to the Court.

In concluding that Title VII prohibits discrimination because of sexual orientation or gender identity, the Court also rejected the argument that the fact that men and women might be treated equally would change the result. In other words, the fact that men and women both could be the subject of equal firings if sexual orientation not sex drove the decision, does not save the employer from a discrimination claim. Sex discrimination does not exist only when the class of men collectively are treated differently than the class of women, according to the Court. Rather, Title VII protects and creates an independent violation for each instance that an employer discriminates against an individual employee because of that individual’s sex, irrelevant of the fact that an employer might fire both males and females if they are transgender or gay. In other words, Title VII focuses on eliminating discrimination against individuals, not groups. As a result, just as “an employer who fires both [female and male employee] for failing to fulfill traditional sex stereotypes doubles rather than eliminates VII liability, an employer who fires both [female and male employee] for being gay or transgender does the same.”

In sum, the Supreme Court has now decided that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex because “the first cannot happen without the second.” “For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms – and that ‘should be the end of the analysis.'” As far as the USSC’s is concerned, it now is.

This decision will have little impact on employers operating in states where sexual orientation and/or gender identity are already protected by applicable anti-discrimination statutes, like New Hampshire and Massachusetts for example. But employers who operate elsewhere and are subject to Title VII must change any policies or practices of discriminating against employees because they are gay or transgender.if they want to avoid a Title VII claim.