On June 15, the U.S. Supreme Court delivered its landmark decision in Bostock v. Clayton County, Georgia, and established LGBTQ rights in the workplace as a matter of federal law. The Court squarely held Title VII of the Civil Rights Act of 1964 includes a prohibition on sexual orientation and gender identity discrimination in employment.
Based on ‘Sex’
The majority opinion in the 6-3 decision was authored by Justice Neil Gorsuch and focused heavily on the plain language of Title VII. He wrote:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
Notably, the Court specifically used a limited, traditional definition of “sex” from the time of the statute’s drafting, namely, “status as either male or female as determined by reproductive biology.” Even using this narrow definition, however, the Court held discrimination based on sexual orientation and gender identity is discrimination based on “sex” because it isn’t possible to discriminate against someone based on sexual orientation or gender identity without including his or her sex in the calculus.
The Court also directly rejected the argument that discrimination against both gay men and gay women is not sex discrimination simply because both sexes are affected equally. As the Court explained, Title VII prohibits discrimination against individuals, not against groups or classes:
This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.
‘But for’ Sex
Bostock also touched on Title VII’s “but for” causation standard, taking care to point out that “but for” doesn’t mean “solely,” or even “primarily,” for purposes of Title VII. Rather, Title VII is violated if sex is one basis for an employment decision, even if there are other bases.
As the Court noted, the Civil Rights Act of 1991 confirms this analysis by explicitly recognizing employer liability under Title VII if sex (or race, color, religion, or national origin) is a “motivating factor” in the challenged employment decision, even if it isn’t the only factor.
As Bostock explains, this understanding of causation further confirms that sexual orientation and gender identity discrimination are necessarily discrimination based on sex:
[I]f changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
‘Simple but Momentous’
While a number of states and localities have already extended workplace protections to include prohibitions on sexual orientation and gender identity discrimination, Bostock is equally “simple but momentous” in extending protections to every employee of every covered employer in the United States.
Significantly, Bostock also represents a rare 6-3 decision on a politically divisive issue, with two typically conservative justices joining with four traditionally liberal justices. Indeed, even in dissent, the Court’s newest conservative justice, Brett Kavanaugh, recognized the enormity of the moment:
Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.
Much will be written about Bostock in the days and years to come, including its potential legacy outside of Title VII. For example, in response to the argument that Congress couldn’t possibly have intended to protect gay and transgender employees in 1964, Bostock explicitly reminds us that the rule of law exists to protect everyone:
To be sure, the statute’s application in these cases reaches beyond the principal evil legislators may have intended or expected to address. But the fact that a statute has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity; instead, it simply demonstrates the breadth of a legislative command. But to refuse enforcement just because of that, 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 is so ordered.
Jason Boulette is an attorney with Boulette Golden & Marin L.L.P. in Austin. You can reach him at jason@boulettegolden.com.