US Supreme Court Rules in Favor of LGBT Employment Rights

6/19/2020

by Kathy D. Aslinger, Esq. and Law Clerk Becca Hanniford

The Supreme Court of the United States issued a landmark opinion on Monday, June 15, 2020, holding that Title VII of the Civil Rights Act of 1964 prohibits an employer from firing an individual based on homosexual or transgender status. The decision involves three cases, consolidated as Bostock v. Clayton County, where an employer allegedly fired an employee for being homosexual or transgender. In response, the employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964.

The 6-3 decision was written by Justice Neil Gorsuch, a notably conservative justice appointed by President Trump in 2017. Equally noteworthy, Chief Justice John Roberts, who until this decision had never joined an opinion endorsing gay rights, joined the majority opinion. Justices Ginsburg, Breyer, Sotomayor, and Kagan also joined the majority opinion. Justice Thomas joined Justice Alito’s dissent, while Justice Kavanaugh dissented separately.

In each of the three cases, a long-time employee was fired shortly after revealing that he or she is homosexual or transgender. Gerald Bostock was fired after working a decade for Clayton County, Georgia, as a child welfare advocate. Shortly after it became widely known in the community that he participated in a gay recreational softball league, he was fired for conduct “unbecoming” a county employee. Donald Zarda worked as a skydiving instructor in New York for several seasons. He was suddenly fired days after mentioning he was gay. Finally, Aimee Stevens had been working at a funeral home in Garden City, Michigan, for six years when she informed her employer that although she presented as a male when she first applied for the job, she would now be living and working as a woman upon returning from an upcoming vacation. Before she left for her vacation, her employer told her “this is not going to work out.” 

The Supreme Court opinion begins its analysis by determining the ordinary plain meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or 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.” In interpreting this ordinary meaning, the Court analyzes the meaning of “sex,” “because of,” “discriminate,” and “individual” as those terms were used in 1964 when Title VII was adopted, eventually coming to the conclusion that the law creates a straightforward rule:  An employer violates Title VII when it intentionally fires an individual employee based in part on sex.

The most influential factor that the Court considered in constructing this rule is the impossibility of discriminating against an individual for being homosexual or transgender without discriminating against that individual based on sex. 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. A reviewing court must ask whether the employer would tolerate this behavior from an employee of another sex. For example, an employer that fires a female employee for being attracted to females, but continues to employ males who are attracted to females, may be firing the female for both her sex and her sexual preference, but as long as the female employee would not have been fired but-for her sex, the statute’s causation standard is met.

The majority discusses three leading precedents and their notable takeaways. First, the Court notes that what an employer may label its discriminatory practice or what might supposedly motivate the practice is irrelevant if the practice discriminates in part based on sex. See, e.g., Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1979) This ruling strikes down a practice in which an employer required women to pay more into the pension fund than their male counterparts because women typically live longer, calling the practice a “life expectancy” adjustment. Second, the employee’s sex need not be the sole or primary cause of the employer’s discriminatory actions. So long as the employee’s sex is one of the factors, the employer is subject to liability. Lastly, an employer cannot escape lability by demonstrating that it treats males and females comparably as groups. Therefore, it does not matter if an employer is willing to fire all male and female homosexual or transgender employees, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law.

The opinion recognizes several arguments from the employers. Notably, the employers did not deny that they fired the employees due to their status as homosexual or transgender individuals; however, the employers argued that discrimination against employees based on homosexuality or transgender status does not involve discrimination based on sex. The employers also argued that the plaintiffs would not refer to their situations as sex discrimination in ordinary conversation but would instead consider the discrimination to be based on homosexuality and transgender status. 

Additionally, the employers argued that they were not intentionally discriminating against sex as the law requires. The majority opinion discredits all of these arguments by interpreting the law through the application of the plain meaning of the terms of the law and applying the holdings of leading precedents. The Court points out that judges interpret statutes by giving terms their strict meaning, not their conversational meanings. Because homosexuality and transgender status are so intricately entwined with an individual’s sex, an “employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.” For example, an employer that announces it will not employ anyone who identifies as homosexual intends to penalize male employees for being attracted to men and female employees for being attracted to women.

In response to the employers’ argument that if Congress intended to address these matters in Title VII, it would have referenced them specifically, the Court offers evidence that Congress intended the law to sweep broadly, as “motherhood” discrimination and “sexual harassment” are distinct from sex discrimination.  Nevertheless, both categories have fallen within Title VII’s liability.

Finally, the employers asserted that when Congress enacted the law in 1964, few would have imagined it would apply to discrimination against homosexual and transgender persons. However, the Court cannot refuse to enforce the plain meaning of the terms from the statutory text simply because Congress may not have anticipated it applying to certain groups. The Court concludes that to refuse enforcement of a law as applied to “groups that were politically unpopular at the time of the law’s passage . . . would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.” Furthermore, Congress drafted the law with a focus on individuals, rather than groups, and created liability for employers whenever sex is a but-for cause, not just the sole cause, thereby signaling Congress’ intent that unexpected applications would eventually emerge.

In summary, the majority opinion explains that judges are simply not free to overlook the plain meaning of statutory commands and recognizes that Congress adopted broad language in Title VII making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. In applying that broad language to facts before it, the Count concludes: “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” 

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