Supreme Court’s Bostock Decision Interprets Title VII to Protect Employees from Discrimination Based on Sexual Orientation or Gender Identity

Employment law has experienced a new development with the October 2019 Supreme Court decision in Bostock v. Clayton County, Georgia.  The Bostock decision expands the understanding of classes protected from discrimination under Title VII.

Title VII is part of the Civil Rights Act of 1964, and it describes the federal laws protecting employees from discrimination on various characteristics.  These characteristics included race, color, national origin, sex, and religion.  In Bostock, the court interpreted Title VII to protect against discrimination based on sexual orientation and gender identity as well by holding that these forms of discrimination, at least in part, are included within sex discrimination.

Three individual cases were combined to produce a single decision under Bostock.  The cases all involved an employer allegedly firing “a long-time employee simply for being homosexual or transgender.”  The three joined cases were originally heard in the Second, Sixth and Eleventh Circuits.  The Second and Sixth Circuits allowed the cases to proceed while the Eleventh Circuit dismissed the suit after holding that Title VII does not prohibit employers from firing employees for their sexual orientation.  The Supreme Court granted certiorari to hear these similar cases and clarify the issue.

The Supreme Court’s reasoning for why Title VII protects these individuals is in how the justices interpreted the word “sex” in Title VII.  The relevant provision states that it is “unlawful . . . for an employer to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”  From this, the Court held that an employer “violates Title VII when it intentionally fires an individual employee based in part on sex,” and that firing based on homosexuality or an identity as transgender means that it “necessarily intentionally discriminates against [an] individual in part because of sex.”

In essence, the Court held that, if an employer would fire one individual but not another in a case where all aspects were the same except for the individual’s sex, the employer would be acting discriminatorily.  For example, if an employer would fire a man for being in a relationship with a man, but they would not fire a man for being in a relationship with a woman, the employer is firing at least in part on the basis of sex, which is prohibited under Title VII.  The Court held that the employer would essentially be intolerant of the man for exhibiting “traits or actions it tolerates in his female colleagues,” and thus “intentionally singles out an employee to fire based in part on the employee’s sex.”

The Court asserted similar reasons in its assessment of those who identify as transgender.  It stated that an employer who fires a transgender woman who was assigned the gender of male at birth while retaining an otherwise identical female employee who was assigned the gender of female at birth is, again, making its decision in part on the employee’s sex.

As has been clarified in other cases, the Court reiterated that it does not matter whether an employer is firing an employee for two reasons, only one of which is related to their sexual orientation or gender identity with the other reason being a legitimate one.  In these instances, sex is still considered to be a reason for the employee’s dismissal, and their firing is therefore prohibited under Title VII.  The majority opinion also rejected the defense presented by the defendants in these cases that, while the employers may ultimately be discriminating based on sex, they were not doing so intentionally.

The majority likened this defense to one often asserted in disparate treatment claims, where one protected class of citizens may be particularly adversely affected by a law but discriminating against that protected class is not the law’s goal, and thus the action is permissible.  The Court distinguished this situation from disparate treatment claims, however, affirming that discriminating against gay and transgender employees “necessarily and intentionally applies sex-based rules.”  Therefore, while an employer may not be intending to harm one sex or the other as a class, that is irrelevant.  The statute protects individuals, not groups.

The opinion by the court was not unanimous.  Justices Gorsuch, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan all joined in this opinion, while Justices Alito, Thomas, and Kavanaugh dissented.  Justice Alito wrote a dissent in which Justice Thomas joined that critiqued the court’s majority opinion as adding language to the statute rather than interpreting what was already in it.  Justice Kavanaugh released his own dissenting opinion in which he expressed that he found the majority’s interpretation to be overstepping the judiciary’s role as interpreters of the law, arguing that they were instead adding to the statute in a way that Congress had not intended.

With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.