Supreme Court Extends Discrimination Protections to Gay and Transgender Employees
In a landmark ruling, a 6-3 majority of the Supreme Court ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and gender identity.
Background of the Cases: The federal Circuit Courts of Appeals have been split on whether discrimination based on sexual orientation and gender identity fall within the confines of sex discrimination under Title VII. The Supreme Court granted certiorari to hear three cases dealing with this issue: Altitude Express, Inc. v. Zarda; Bostock v. Clayton County., Ga.; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C.
In Altitude Express and Bostock the plaintiffs alleged that their discharges from employment were based on their status as gay males, which did not conform to their employer’s expectations of male behavior in violation of Title VII. A panel of the U.S. Court of Appeals for the Second Circuit initially found in Altitude Express that Title VII did not protect against sexual orientation discrimination, but upon rehearing, the en banc (i.e. entire) court then found that it did. The Eleventh Circuit came to the opposite conclusion in Bostock.
R.G. & G.R. Harris Funeral Homes involved a claim by a biological male who was discharged after informing the employer of an intent to transition to female and to dress consistent with that intention. Suing on the employee’s behalf, the EEOC maintained that Title VII is violated by adverse actions based on an individual’s transgender status and failure to conform to sex stereotypes, and the Sixth Circuit agreed.
The Supreme Court’s Ruling: In the consolidated case of Bostock v. Clayton County, Ga., the Supreme Court first explained that “sex” refers “only to the biological distinctions between male and female.” It next turned to the meaning of Title VII’s prohibition on employment actions taken “because of” sex, finding that this means the action would not have happened “but for” discrimination based on sex. According to the Supreme Court, therefore, “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” (Emphasis in original)
The Supreme Court then examined the meaning of “discrimination,” finding that “an employer who intentionally treats a person worse because of sex — such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.”
The Supreme Court went on to articulate “a straightforward rule” as follows:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
Citing to its own precedent, the Supreme Court announced that Title VII’s “simple but momentous” message is that “[a]n individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” As extended to the three cases in front of the Court, the “equally simply and momentous” message is that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” The Supreme Court went on to state, “[t]hat’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court explained that “homosexuality and transgender status are inextricably bound up with sex.”
The Supreme Court further clarified that the fact that other factors may contribute to the decision does not matter, stating:
When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
The Supreme Court rejected the argument that there is no discrimination because both homosexual or transgender employees of both sexes are treated the same, since Title VII looks at the treatment of individuals, not just classes of men or women.
In support of its decision, the Supreme Court turned to three of its leading precedents. In Phillips v. Martin Marietta Corp., the Court found that a company violated Title VII’s prohibition on sex discrimination when it refused to hire women with young children while hiring similarly situated men. In Los Angeles Dept. of Water and Power v. Manhart, the Court also found illegal sex discrimination where women were required to make larger pension fund contributions than men, based on women’s longer life expectancy and resulting greater benefits over time. In that case, the Court noted that, while women as a class may live longer than men, any individual woman may not necessarily do so – and thus was treated differently because of her sex. Finally, in Oncale v. Sundowner Offshore Services, Inc., the Court “held it was immaterial that members of the same sex as the victim committed the alleged discrimination” in finding that the plaintiff was harassed because of his sex (and failure to comply with sexual stereotypes).
The Supreme Court drew several lessons from these precedents. First, it found that what the employer calls the discriminatory practice is irrelevant – “labels and additional intentions … cannot make a difference.” Thus an employer who is motivated by an employee’s homosexuality or transgender status is “necessarily and intentionally discriminat[ing] against that individual in part because of sex” in violation of Title VII. Second, “the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.” And finally, “an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.”
Of particular interest, the Supreme Court also rejected the employers’ (oft-cited) argument that if Congress had intended to include homosexuality and transgender status within Title VII’s list of protected characteristics, it would have specifically done so. Although the Supreme Court acknowledged that homosexuality and transgender status are distinct concepts from sex, the Court went on to assert that “ discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” The Court further observed, “when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.” The Supreme Court downplayed the significance of past failed proposals by Congress to add sexual orientation and transgender status to Title VII’s list, finding speculation as to why Congress declined to do so to be a “particularly dangerous” basis for interpretation of the existing law.
The Supreme Court also addressed the argument that there was no expectation in 1964 that Title VII would encompass sexual orientation and transgender status. The Court acknowledged that its interpretation of Title VII “reaches beyond the principal evil legislators may have intended or expected to address,” but that this “simply demonstrates the breadth of legislative command.” And, as the Supreme Court notes, “it is ultimately the provisions of those legislative commands rather than the principal concerns of our legislators by which we are governed.” It rejected the idea that a statute cannot have an unexpected application, and went on to note that such application was not entirely unexpected in any case, given that gay and transgender employees attempted to invoke Title VII’s protections early on. Moreover, the Supreme Court stated that to refuse enforcement because of an unexpected application “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.” It would also require the unraveling of Title VII jurisprudence developed over decades – such as Phillips and Oncale – where the law was applied in arguably “unexpected” ways.
The Supreme Court noted that some of the policy concerns and arguments raised by the employers – including the intersection of Title VII with an employer’s religious liberties – are matters left for Congressional action or future cases. Its only focus in this set of consolidated cases is “whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.’” And it has concluded that “An employer who fires an individual merely for being gay or transgender defies the law.”
What This Means for Employers: As a practical matter, twenty-six states (most recently including Virginia) have enacted state law protections against discrimination based on sexual orientation and gender identity. For employers in those states, this ruling is one of primarily academic interest, as they have already had to ensure non-discrimination on those bases. For the remaining states, however, this ruling expands the scope of sexual discrimination protections for gay and transgender workers. All employers will likely see an increase the filing of EEOC charges alleging sexual orientation or gender identity discrimination.