In a 6-3 decision, the United States Supreme Court has determined that Title VII of the Civil Rights Act prohibits employers from discriminating against employees because of their sexual orientation or gender identity. Bostock v. Clayton County, Georgia, 590 U.S. __ (2020). Delivering the opinion of the Court, Justice Gorsuch – appointed by President Trump in 2017 – wrote that "[a]n employer who fires an individual merely for being gay or transgender violates Title VII." Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined in the opinion.
In reaching the holding, Justice Gorsuch focused on the plain text of Title VII: "The statute's message for our cases is . . . simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions."
Justice Gorsuch, relying on the "but-for" causation standard, noted that a termination "based in part on sex" violates Title VII, and that "[i]t makes no difference if other factors besides the plaintiff's sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group." The Court reasoned that an employment decision based on sexual orientation, for example, was "based in part on sex" – in other words, a decision to discharge a male employee who is attracted to men is based, at least in part, on the fact that the employee is a man. In the eyes of the Court, now the law of the land under Title VII, that disparate treatment constitutes sex discrimination.
The Court rejected the argument that Congress, when it enacted the Civil Rights Act in 1964, would never have expected or intended its provisions to cover treatment based on same-sex attraction or gender identity. (One note. The Court, in its opinion, uses the term "transgender status." This post uses "gender identity," with the intention of conferring the same meaning as the term used by the Court.) The Court responded that "legislative history has no bearing here, where no ambiguity exists about how Title VII's terms apply to the facts." In other words, because Title VII is plain and unambiguous, the Court will construe the words to mean what they say.
The Court emphasized that it has long rejected arguments that an "unexpected and important" interpretation of a statute must first be approved by Congress, such as prior Title VII caselaw protecting women from pregnancy-based discrimination and protecting men from sexual harassment. Justice Gorsuch summed up the Court's history with Title VII and its plain language as follows:
"Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands."
The employers argued, among other things, that the employment decisions at issue were not discriminatory because they treated men and women equally (i.e., either could be terminated for being gay or transgender). The Court responded that it remained sex discrimination, for example, to fire a man for being attracted to men when a woman would not be fired for the same thing (being attracted to men). (It should be noted that in Loving v. Virginia, the Supreme Court case striking down bans on interracial marriage, it was argued that laws banning interracial marriages were not discriminatory because white and black Americans were barred equally from marrying a member of a different race. That argument was not successful. Loving v. Virginia, 388 U.S. 1, 8 (1967).) The Court emphasized that Title VII bars discrimination on an individual basis, and not regarding groups in general – therefore, if a woman employee is allowed to date or be married to a man, then a man must be given that same right. As the Court said, "if changing the employee's sex would have yielded a different choice by the employer . . . a statutory violation has occurred."
The Court also rejected the employers' other arguments. The Court placed no importance on a "conversational" argument that most people would refer to the type of discrimination at issue as sexual orientation discrimination or transgender discrimination, rather than sex discrimination –what "most people" might say is not expressed in the text of the statute. Similarly, the Court did not find it relevant that Congress has repeatedly rejected expressly adding sexual orientation to Title VII. In so holding, the Court echoed the words of former Justice Scalia that "[a]rguments based on subsequent legislative history . . . should not be taken seriously, even in a footnote." The Court also found unpersuasive the argument that sexual orientation and gender identity are not listed in Title VII, based on the conclusion that discrimination on those characteristics necessarily entails discrimination based on sex. In the Court's eyes, none of the employers' arguments successfully rebutted the Court's reading of Title VII's plain language.
The Court's opinion, of course, does not outline every contour of how Title VII might apply to discrimination based on sexual orientation or gender identity. The facts before the Court were simple, and each employer admitted that it had fired the plaintiffs because they were gay or transgender. Moreover, the Court noted that certain defenses – such as the ministerial exception for religious employers and the Religious Freedom Restoration Act – might serve to bar a plaintiff's claims.
Although the decision can be read to expose employers to additional litigation, there is an alternative point of view. After all, as evidenced by the original lawsuits that led to the Court's decision, employers were already facing lawsuits for discrimination based on sexual orientation and gender identity, and employers were facing unpredictable outcomes based on where the plaintiff chose to file suit. Now, the Supreme Court's decision at least offers certainty as to the legal principle at issue, and employers can rely on that certainty in choosing a course of action.
Further, Justice Gorsuch's opinion indicates that employers can continue to rely on the same defenses – including religious freedom-based defenses – that they already use in Title VII litigation. Experienced employment litigation counsel should be well-equipped to help employers balance these considerations and make the right decision for their businesses.