On Monday, the Supreme Court released its decision in Bostock v. Clayton County, Georgia, holding that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
The opinion was the product of three separate appeals in factually similar cases. Each plaintiff was fired by an employer shortly after the employee revealed that he or she is homosexual or transgender. The dismissals were seemingly based on the employee’s homosexuality or transgender status, and the plaintiffs brought suit under Title VII, alleging unlawful discrimination on the basis of sex. Title VII makes it unlawful “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 . . . employment, because of such individual’s race, color, religion, sex, or national origin.”
The Court analyzed whether the plaintiffs’ cases were covered by Title VII’s reference to “sex”, as the law includes no reference to sexual orientation or individuals who identify as transgender or non-binary. Justice Gorsuch, writing for the 6-3 majority, opined that the case does not hinge upon the dictionary definition of “sex”, but instead on Title VII’s reference to the prohibition of activity “because of sex”. The Court analogized Title VII’s prohibition of discrimination based on sex to the traditional negligence causation analysis—whether a particular outcome would not have happened “but for” the purported cause.
The Court stated that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” “But for” the plaintiffs’ sex in the three instances, there would have been no dismissals. The Court provided an example of two materially identical employees, both attracted to men, but one is a man and one is a woman. If the employer dismisses the male employee because he is attracted to men, the employee’s sex is central to the employer’s decision even if the employer claimed another impetus. The fact that the employee’s sex played a role brings the dismissal under the protection of Title VII.
Combatting arguments propounded in the dissents, Justice Gorsuch reasoned that LGBTQ+ individuals could be covered by Title VII despite legislators not anticipating such inclusion at the time the law went into effect. An application of the law’s plain language clearly affords these individuals protection: to refuse enforcement “because the parties before us happened to be 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.”
If you have questions regarding the Supreme Court’s opinion in this historic case, you can email Alysa Koloms, a partner at The Cook Group, at firstname.lastname@example.org.