Let’s Talk About ‘Sex’: SCOTUS Delivers Title VII Landmark Ruling

On June 15, 2020 the United State Supreme Court directly and unequivocally answered the question of whether an employer can terminate an employee for their sexual orientation and/or gender identity – the Court held employers cannot. More than more than five decades after the passage of Title VII of the Civil Rights Act, protections for the LQTBQ+ community remained uncertain, and half of state governments did not provide blanket employment protections for employees on the basis of their sexual orientation and/or gender identity. And while many states still do not provide hate crime and other protections for the LGBTQ+ community, the Bostock¹ decision marks a significant victory in the battle for equal rights. Leaving no room for ambiguity, the Court declared the rule that is derived from the statutory language. “[A]n 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.”²

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 compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”³ The Bostock decision presented the United States Supreme Court with the question of whether Title VII encompass discrimination based on an individual’s sexual orientation and/or gender identity.

The Court’s decision in this consolidated action of appeals from the second, sixth, and eleventh circuits had support of six Justices and dissents from three. Justice Neal Gorsuch delivered the opinion with Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan joining. Justice Alito authored a dissent that Justice Thomas joined, and Justice Kavanaugh authored a separate dissent.

The Court did not dwell over the all-too-familiar factual scenarios of the underlying three cases. In each case, Zarda v. Altitude Express, Inc.,⁴ EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.⁵ and Bostock v. Clayton County Board of Commissioners,⁶ a gay or transgender employee was terminated for because the employee was either gay or transgender. These cases ultimately led to a circuit split between the Eleventh and the Second and Sixth Circuits for which the Court granted certiorari. After consolidating the appeals, the Court was tasked with resolving the issue of whether discrimination against an employee because of sexual orientation or gender identity (or “transgender status”) constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964.

The Court resolved this legal question relatively quickly, holding that discrimination on the basis of homosexuality or transgender status necessarily requires that the employer do exactly what Title VII prohibits—intentionally treat employees differently because of their sex. The majority went on to address opposing viewpoints, nuances, and arguments proffered by the dissenting Justices. It noted that in order to resolve these issues, it must (1) keep in mind its limited role in interpreting statutes, as to be careful not to usurp Congress’s power,⁷ and (2) analyze the statute through a 1964 lens.⁸

The majority recognized that the terms “sex,” “because of,” and “discrimination” are integral to the resolution of the parties’ claims. The Court utilized 1964-era definitions and societal context to solidify its understanding of these terms it must analyze. Recognizing that some may have appreciated a broader definition, the Court proceeded on the assumption that “sex” in 1964 referred only to biological distinctions between male and female anatomy.⁹ The ordinary meaning of “because of” at the time was “by reason of” or “on account of.”¹⁰ Here, the Court made clear that Congress intended the but-for test be the proper causation standard.¹¹ Importantly, it also recognized that there may be more than one but-for cause for an adverse employment action under the statute. And to “discriminate against” a person, the Court found, means treating that individual worse than others who are similarly situated.¹²

To further support the statute’s plain language, the court embarked on an illustration-filled discussion on why it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”¹³ Notably, the Court provided the example of two groups of otherwise similarly situated male and female pairs of individuals: (1) who both like men and (2) who both identify as female. If the employer fires only the male who likes men because of that reason, or the formerly male-identifying female for that reason, and not their female counterparts for the same reason, it is “unmistakable” that the individual’s sex played a role in that employment decision.¹⁴

The Court ultimately held that “homosexuality and transgender status are inextricably bound up with sex … because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”¹⁵ It also unequivocally stated that if an employer discriminates against homosexual and/or transgender employees, that employer satisfies the statute’s intent requirement because it “inescapably intends to rely on sex in its decisionmaking.”¹⁶ Because the employers did not dispute terminating the plaintiffs employment for their sexual orientation or transgender (gender identity) status, the Court did not have to resolve any issues regarding pretextual reasons for terminating the employees.

Citing past precedent, the Court declared that its holding should come as no surprise, reasoning that it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.¹⁷ (i.e. clever naming or framing of discriminatory policies do not insulate an employer from liability). Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.¹⁸ Last, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.¹⁹

With its ruling firmly in place, the Court then addressed the dissents and opposing viewpoints in the third and longest section of the opinion, beginning with “[w]hat do the employers have to say in reply?”²⁰ Justices Alito and Kavanaugh separate dissents relied on the commonly used textual argument that “if Congress had wanted to address sexual orientation and gender identity in Title VII, it would have referenced them specifically.”²¹

Justice Alito focused on unsuccessful LGBTQ+ employment-related bills previously considered by Congress to provide support for the argument that the majority’s decision equates to “legislation.”²² Justice Alito made a “slippery slope” argument to show the potential unintended effects of the majority’s decision, including that there could be implications in many contexts, such as bathrooms, locker rooms, women’s sports, housing, faith-based employment practices, healthcare, freedom of speech, and constitutional claims.²³

Striking a completely different tone than Justice Alito’s dissent, Justice Kavanaugh acknowledged the “important victory achieved” by the LGBTQ+ community, recognizing the community’s “extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives.” Justice Kavanaugh’s dissent argued that the Court rewrote the law based on its own policy views, and not the language of the statute.²⁴ As evidence, Kavanaugh cited the history of appellate and district court decisions to claim that the majority of prior courts to consider the issue did not come to the same conclusion as the majority.²⁵ The Kavanaugh dissent also spent a considerable amount of time discussing the difference between the ordinary and literal meaning of “sex” to bolster the argument that in order to come to its decision, the majority relied on the literal meaning of “sex” instead of relying on the ordinary meaning, which the court should follow in order to maintain “rule of law and democratic accountability.”²⁶

The majority had no shortage of counterpoints to the dissents in this regard. The majority held that its interpretation was in line with the statute’s language because “when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”²⁷ The Court also pointed out that in at least three prior instances (sexual harassment, motherhood discrimination, sex-segregated job advertising) it included concepts not explicitly provided for in Title VII.²⁸ It reasoned that sexual orientation and transgender status are no different. Last, the majority responded to the textual arguments by citing the late Justice Scalia for the notion that “[a]rguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote.” Touché.

Justices Alito and Kavanaugh also suggested that there are in fact ways to discriminate solely based on sexual orientation and transgender status that would not qualify as sex discrimination.²⁹ Justice Alito provided the example of an employer enacting a policy that explicitly forbids the hiring of homosexual and transgender persons, despite their biological sex, just like the United States military has done.³⁰ The majority pushed back by highlighting that sexual orientation and gender identity are unable to be separated from Alito’s understanding of the term “sex.” The majority challenged the dissenting justices and employer defendants to devise instructions or explanations for a discriminatory rule (sexual orientation and gender identity) that does not utilize sex-based terminology. It posited this cannot be done because these concepts are all inextricably bound.

The employers and dissenting Justices finally asserted that in 1964, few “would have expected Title VII to apply to discrimination against homosexual and transgender persons.”³¹ The majority responded twofold. First, it saw no need to dive into legislative history here, because legislative history “is meant to clear up ambiguity, not create it.”³² “[T]he 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.”³³ Second, the majority insisted that the Court interprets statutes regularly. Peculiarly, it noted, the Court receives push back when the focus of the statutory interpretation benefits unpopular groups in society.³⁴ The majority uses the example of the Americans with Disability Act (“ADA”) and how its application to post offices (not provided for in the ADA) was not controversial, but its application to prisons (also not provided for in the ADA) was very controversial.³⁵ The Court put this argument to bed by stating “[t]o 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.”³⁶

In the face of compelling and creative arguments from the parties, a crystal-clear rule emerged from the majority opinion: Title VII now protects individuals based on their sexual orientation and transgender status (gender identity). Just as the late Judge Damon J. Keith would famously say, “[t]here’s not a day in my life in some way large or small, I’m not reminded of the fact that I’m Black,”³⁷ there is no doubt that the LGBTQ+ community also face daily reminders that they are “different.” At least as of June 15, 2020, the reminder of one’s LGBTQ+ status can no longer be legally acceptable grounds for termination. As recognized by Justice Kavanaugh, this is something of which our nation can be proud.

Azar Alexander and Joy Anderson are attorneys at Riley Safer Holmes & Cancila LLP in Chicago, Illinois.