The U.S. Supreme Court’s Historic Ruling in Bostock Extended Protections to LGBTQ+ Workers
It has been just over two months since the U.S. Supreme Court issued its historic ruling in Bostock v. Clayton County, 590 U.S. ___ (2020), which extended workplace protections to LGBTQ+ workers. For purposes of oral argument and decision, Bostock was consolidated with two related actions, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al.
Given the Court’s conservative majority—bolstered by President Donald Trump’s two appointees, Neil M. Gorsuch and Brett M. Kavanaugh—it came as a surprise to many that the Court’s ruling was 6-3 in favor of protecting LGBTQ+ rights—and that it was written by Justice Gorsuch and joined by Chief Justice John G. Roberts, Jr. Indeed, it should not be lost on anyone that the Chief Justice—keenly aware of the Court’s reputation in today’s era of deeply divided partisan politics—assigned the task of writing the majority opinion to the Court’s second most junior justice and, in doing so, helped to ensure that the Court’s ruling was more secure from partisan attacks.
The underling facts in the three actions are straight-forward. In Bostock, Gerald Bostock was fired from a county position for conduct “unbecoming” a county employee after he began participating in a gay recreational softball league. In Zarda, Donald Zarda was fired from his position as a skydiving instructor after he mentioned that he was gay. Lastly, in R.G. & G.R. Harris Funeral Homes, Aimee Stephens, who presented as a male when she began working for her employer, was later fired after she told her employer she planned to “live and work full-time as a woman.”
The legal question in Bostock was whether Title VII of the Civil Rights Act of 1964—which bars discrimination in the workplace on the basis of race, color, religion, sex, or national origin—precludes an employer from firing someone simply for being homosexual or transgender. The “answer is clear,” wrote Justice Gorsuch: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Consistent with his approach to questions of statutory interpretation, which entails focusing on the plain text of a law, Justice Gorsuch analyzed what “because of” (and related terms) in Title VII meant at the time of the statute’s passing in 1964, and concluded that an employer violates Title VII “when it intentionally fires an individual employee based in part on sex.” The Court further concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In the end, Justice Gorsuch explained that “these cases involve no more than the straight-forward application of legal terms with plain and settled meanings. 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.”
Drawing on the Court’s prior precedents involving Title VII cases (Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1988)), the Court summarized three key takeaways: (1) “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it”; (2) “the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action”; and (3) “an employer cannot escape liability by demonstrating that it treats males and females comparably as groups” given the statute’s focus is on individuals.
The remainder of Justice Gorsuch’s opinion addressed and rebutted the arguments advanced by the employers—and largely adopted by Justices Alito and Thomas in their respective dissents. The employers’ two main arguments were: (1) discrimination on the basis of homosexual or transgender status does not involve discrimination “because of” sex, and (2) the legislature couldn’t possibly have expected the current outcome and unintended consequences are likely to follow as a result of the Court’s decision. But Justice Gorsuch rejected all of these arguments: “none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is.” The majority rejected the employers’ first argument suggesting that “sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow,” explaining that so long as sex was a “but for” cause of the employer’s decision, the statute was triggered.
Next, the Court considered and rejected the argument that few people in 1964 “would have expected Title VII to apply to discrimination against homosexual and transgender persons.” The Court explained this was true of many of the “unintended” consequences that followed the statute’s enactment in 1964 due to the broad language adopted in Title VII. Lastly, although the Court acknowledged that issues concerning the free exercise of religion may intersect with Title VII’s mandate, it noted that such concerns “are nothing new,” and, in any event, none of the employers in the three actions advanced a religious liberty claim in the Supreme Court. The Court commented that “how these doctrines protecting religious liberty interest with Title VII are questions for future cases[.]” The majority also clarified that its ruling applies only to employment decisions and does not purport to address issues like sex-segregated bathrooms and locker rooms.
In the end, Justice Gorsuch explained that although “Title VII’s effects have unfolded with far-reaching consequences” it was Congress’s decision in 1964 to “adopt broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire the employee.” And so, “[w]e do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transfer defies the law.”
To read the Court’s Opinion, click here.