I. Introduction – A Case that Extends Needed Protections Against Firing Based on Sexual Orientation or Gender Identity, but Leaves Questions About Other Protections
In an opinion written by Justice Neil Gorsuch, which, to say the least, pleasantly stunned LGBTQ rights advocates, the United States Supreme Court on June 15, 2020, held that the prohibition in Title VII, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination based on sex protects LGBTQ employees from termination motivated in part by their sexual orientation or gender identity. In the case of Bostock v. Clayton County, Georgia, the Court concluded that an employer that fires an employee because the employee is gay or lesbian or is 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.” The decision rejected the arguments of the employers, and of the Trump Justice Department, that Title VII’s protections do not extend to gay/lesbian or transgender employees.
In each of the cases, the plaintiff had been a long-time employee with a good performance record. Each was fired shortly after having revealed that he or she was homosexual or transgender, and allegedly for no reason other than that status.
The Bostock decision gives the following guidance and leaves the following questions:
1. In the more than 25 states that lack laws prohibiting termination of employment based on sexual orientation and gender identity, employees are now protected by the federal Civil Rights Act of 1964 from such discrimination. Employers in those states should promptly update their employment policies to bring them into compliance with the law and train their human resource professionals and management personnel about their responsibilities to avoid employment decisions based on sexual orientation or gender identity.
2. The opinion, which focused primarily on the text of Title VII, which the Court found unambiguous, shows that a strict textualist and originalist approach to statutory interpretation can lead to applications of a statute not anticipated at the time the statute was adopted. The same result could occur where the Court construes constitutional provisions, but it is less assured with a document that was drafted more than 230 years ago. It is at best unclear whether Justice Gorsuch’s application of this approach offers any hope when the Court tackles other civil rights issues, like a woman’s right to choose.
3. The Court’s opinion supports its originalist and textualist approach with precedent. It cites three Supreme Court cases, from 1971, 1978 and 1998, to show that its interpretation of Title VII, which leads to a result in Bostock that, as the employer defendants noted, would not have been expected in 1964 when the statute was adopted, is in line with prior cases in applying the plain meaning of the law to situations not contemplated at that time. The Court also points out the many applications of Title VII over the years that would have to be unraveled if the expectation of the Congress that adopted it in 1964 – provided those expectations could be accurately discerned – dictated the limit on how the words of Title VII could be applied. These buttressing analyses in the opinion could give some comfort with regard to how the Court will rule on other civil rights issues that are brought before it – or at least instruct civil rights advocates on the kinds of support that could sway a Justice many thought would tow the conservative line.
4. The Court explicitly left open how other claims of discrimination under Title VII, for example, restricted use of restrooms, would fare. And it noted that how religious freedom claims would impact the application of Title VII to claims of transgender or sexual orientation discrimination is an open question.
II. The Court’s Reliance on the Meaning of Title VII’s Words as of Its Enactment, after Finding the Language Unambiguous
The Court determined that the broad language of Title VII was unambiguous and set out to interpret it in accordance with the “ordinary public meaning” of its terms at the time it was adopted. Finding no ambiguity in the import of the statutory language, the Court eschewed delving into the legislative history of the statute. “After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Limiting its interpretation to the words of the law gave “the people” the “right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.”
Title VII provides: “It shall be an unlawful employment practice 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 compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1).
For purposes of interpreting and applying the statute, but without deciding the issue, the Court adopted the employers’ definition of “sex,” that is, that it referred “only to biological distinctions between male and female.” Turning to the term, “because of,” the Court concluded that it incorporated the “simple” and “traditional” “but-for causation” analysis. Such causation is established “whenever a particular outcome would not have happened ‘but for’ the purported cause.” Where the “but-for” causation analysis is applied to a claim under Title VII, an employer cannot escape liability by citing some other facts that contributed to the challenged employment decision. Even where a plaintiff/employee’s sex is one but-for cause of an employer’s decision, Title VII is triggered.
Again accepting for the sake of argument the employer defendants’ contention that Title VII concerns only employee terminations that involve discrimination, the Court found that, when the statute was enacted in 1964, the terms to “discriminate against” a person meant to treat one person worse than other similarly situated persons. In cases like those before the Court, in which a plaintiff employee claims disparate treatment, the difference in treatment had to be shown to be intentional.
The Court held: “So, taken together, an employer who intentionally treats a person worse because of sex – such as 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.”
III. Title VII Focuses on an Employer’s Treatment of Individuals, not on Its Treatment of all Employees of the Same Sex
Rejecting the employer defendants’ contention that, where an employer treats all members of a sex the same way as a group, there can be no Title VII violation, the Court explained that, based on the language of the statute, Title VII’s prohibition against discrimination focuses on protection of an individual, not on a group, for example, of all women or all men.
Out of the ordinary meaning of the statutory language, the Court discerned the straightforward rule: “An employer violates Title VII when it intentionally fires an individual based in part on sex.”
IV. The Court’s Clear Admonition – An Employer that Makes an Employment Decision Based on an Employee’s Sexual Orientation or Gender Identity Discriminates Because of the Sex of the Employee, in Violation of Title VII.
The Court went further to note: “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant in employment decisions.” This is so, because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. An employer that discriminates against an employee on the ground of the employee’s homosexuality or transgender status “inescapably intends to rely on sex in its decisionmaking.”
The Court addressed the employer defendants’ (and dissenting opinions’) arguments. That even the plaintiffs might not describe their claims as discrimination based on sex, rather than based on sexual orientation or gender identity, was of no import, because sex was a factor in the employers’ decision to fire the employees. The absence of “sexual orientation or “transgender status” as protected categories in Title VII does not support a conclusion that Title VII does not protect discrimination against persons of one of the other status, because discrimination based on either status “necessarily entails discrimination based on sex . . . .” Moreover, “when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”
That Congress had not adopted legislation since the enactment of Title VII, to add sexual orientation or transgender status to the statute, or that Congress had included those statuses in other protective statutes does not support a restrictive interpretation of Title VII. Such “subsequent legislative history” leads to speculation that is a “particularly dangerous” basis on which to rest interpretation of an existing law that a prior Congress had enacted.
The Court refused to limit Title VII based upon the employers’ argument that few in 1964 would have expected Title VII to apply to discrimination against homosexuals and transgender persons. The Court explained that legislative history does not come into play when the language of the statute is unambiguous. The meaning of Title VII’s broad language had not changed. And the Court noted that the employer defendants’ argument was not an attempt to ferret out the meaning of the statutory terms at the time Title VII was enacted, but rather was an attack based on the notion that few in 1964 would have expected the result of application of the statute as in the cases before the Court. The Court cautioned that determining what was and was not expected at that time is a problematic exploration without clear standards. Engaging in such an analysis carries the risk that it would not be used neutrally, but rather to deny application of broad protective laws to politically disfavored groups. And such an analysis could require the unraveling of many other applications of Title VII by the Court to circumstances not expected by the drafters.
Responding to the employers’ argument that dire consequences would ensue from the Court’s decision, the Court stated that it was deciding Title VII’s application to the employment terminations involved in the cases before it, and not to issues that the cases did not present – like restroom use. Nor was the Court determining how Title VII’s application would impact religious freedom or how its application would be impacted by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.