- Posted on: Jun 18 2020
Bostock v. Clayton County: A Landmark Decision On Homosexual and Transgender Employee Protections
By: Michael Lehr
Lehr is an Associate with Dunlap Bennett & Ludwig in our Richmond Office.
[6.18.2020] In what will likely be seen as a landmark decision for years to come, on Monday, June 15, 2020, the Supreme Court of the United States handed down an opinion in the case Bostock v. Clayton County, Georgia, 590 U.S. __ (2020). The Bostock decision consolidated three separate cases, which each dealt with alleged discrimination in the workplace; the remaining cases are Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. In each case on appeal to the Supreme Court, one central question encapsulated the proceedings, does Title VII of the Civil Rights Act of 1964 provide homosexual and transgender employees protection from discrimination in the workplace? The answer, as the Court stated in the opening paragraph of its opinion, is unequivocally yes.
In a slightly unexpected turn of events, recent President Trump appointee, Neil Gorsuch, penned the majority opinion, which the Court held in favor of the Petitioners 6-3. Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan joined Gorsuch in the majority, while Justices Alito and Kavanaugh each wrote dissenting opinions. Justice Thomas joined the dissenting opinion of Justice Alito.
To understand the weight of this decision, we must first look back at the development of the law, which has brought us to this point. Title VII of the Civil Rights Act of 1964, codified as 42 U.S.C. 2000e et seq., provides that it “shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[.]” Upon first glance, this may appear to be straightforward language, but when applied to the millions of interactions between employers and employees, which occur every day, the black and white turns a bit grey. The scope of the phrase, “because of sex,” when analyzed in its most narrow of interpretations, meant as plainly that Boss, a man, could not fire Employee because she is a woman. Likewise, Boss could not pay Employee less or provide her with fewer benefits because she is a woman.
These examples are simple, but as we all know, life is not. Take for example, the case in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)(per curiam), where a woman brought a lawsuit alleging that she had been denied employment because she was a woman with young children. The employer argued that its conduct was not based on sex because nearly 80% of the new hires for that position were women, and it was the children, not Phillips being a woman that guided their decision. Id. at 543. However, this could not defeat the fact that certain family obligations attributed to women inherently bring “sex” into the equation and are therefore prohibited. The Court held as such, in favor of Ms. Phillips.
In 1989, the Supreme Court held that an accounting firm violated Title VII when it failed to promote a woman employee to partner status because of sex stereotyping. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166. There, the employer denied partnership status to one of its women managers, Ann Hopkins– despite an exemplary record – due to her overtly masculine, and abrasive persona. Id. at 232. A plurality of the Court held that the denial was indeed on the basis of sex because it was a “motivating” factor in the employer’s decision. Id. The Court held that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250. Congress later included its own interpretation of the “motivating factor” test, thus superseding this decision, when it passed the Civil Rights Act of 1991.
In 1998, the Supreme Court further expanded Title VII’s reach in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). There, a male employee on an oil-rig sued his male coworkers and employer for severe sexual harassment and discrimination due in-part to his allegedly less masculine tendencies. Id. at 77. The Court held that while the case didn’t involve “the principal evil Congress was concerned with when it enacted Title VII [,]” it nonetheless unanimously held that Title VII’s protections applied. The Court opined that it was not required that an employee be subjected to discrimination by an individual of another sex, but strictly that the plaintiff shows that any such discrimination was “because of” sex.
While noting that this article has, for the sake of brevity, skipped several decades of legal developments, this brings us back to the consolidated Bostock decision. In Bostock, the named Petitioner, Gerald Bostock, worked for Clayton County, Georgia for a decade, winning national awards for his work for the county. Bostock, 590 U.S., slip opinion at 2. However, Clayton County terminated Bostock for “conduct ‘unbecoming’ of a county employee” soon after participating in a gay recreational softball league. Id. at 3. Donald Zarda was a skydiving instructor whose employer abruptly terminated him just days after mentioning to his employer that he was gay. Id. Finally, Aimee Stephens worked for R.G. & G.R. Harris Funeral Home in Garden City, Michigan. Ms. Stephens began her employment presenting as a male, but several years later, she informed her employer that after an extended vacation she would return to work presenting as a female. In response, her employer immediately terminated her, informing her “this is not going to work out.” Id.
In each case, the discharged employee filed suit under Title VII, alleging unlawful discrimination on the basis of sex. The federal appellate circuits were split on this issue. The Eleventh Circuit heard the Bostock case and held that Title VII does not prohibit employees from firing employees for sexual orientation. In contrast, the Second and Sixth Circuits, which heard the Zarda and Harris Funeral Home decisions respectively, came to the opposite conclusion. This ongoing circuit split, necessitated the Supreme Court take up the case and finally issue an opinion on the scope of the definition of “sex.”
In his analysis, Justice Gorsuch explained that, while “sex” in 1964 likely had a broader definition than mere biological distinctions between male and female, for the sake of the argument the contemporary dictionary definition of male versus female would suffice. Id. at 5. However, he continued this was “just the starting point.” Id. The rest of the pertinent language in Title VII, “because of” required a far more comprehensive analysis of what exactly “because of” in addition to “sex” meant in the context of Title VII. Id. In doing so, he came to the well-thought conclusion that “[i]f the 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.” Id. at 9.
From this interpretation came the clear-cut, black-letter law, which law students, lawyers, and jurists so readily crave: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. Thus, any incorporation of an individual’s sexual orientation or transgender status in an employment decision is inherent “because of sex” and therefore unlawful.
Take, for example, a case where a company has two employees, both exemplary in their performance, and each married to a woman. Should the employer terminate one employee because she is a woman married to a woman the employer unquestionably does so “because of” the sex of the employee. This is not to say that an employer cannot terminate a homosexual or transgender employee for a legitimate reason – such as tardiness or absence, poor performance, etc. Rather, the Court’s opinion merely confirms that employers must have a legitimate reason to discharge or fail to hire any single individual and cannot base even part of its decision on the employee’s sex, sexual orientation, or transgender status.
In sum, this opinion clears up a decade’s worth of contradicting legal case law and provides a clear understanding of the breadth of the scope of “sex” and Title VII’s protections. Employers, if they had ever done so before, can no longer include any reference to sex in making employment decisions – other than those clearly defined “bona fide” exceptions, which Title VII defines. We shall see how the courts will apply this decision in employment disputes for years to come, but it would appear to provide at least some clarity in an all but clear discussion of sexual identity in America.
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