Bradley & Riley PC

By David Caves

This week, the United States Supreme Court issued a landmark ruling in Bostock v. Clayton County, holding that Title VII of the Civil Rights Act—which prohibits workplace discrimination because of an employee's sex—necessarily prohibits discrimination on the basis of an employee's sexual orientation or gender identity. Many employers have long included gay and trans employees in their non-discrimination policies as a best practice and as a means to attract and retain talented employees. The Bostock decision now makes this legally required for all employers who are covered by Title VII.


On the Basis of Sex


Justice Gorsuch penned the majority opinion in the 6-3 decision, which was joined by Chief Justice Roberts and as well as Justices Ginsburg, Sotomayor, Kagan, and Breyer. There is ample analysis throughout the 33-pages of the opinion, but the bulk of the decision can be summed up in a few simple, but strong sentences:


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.


The background behind this historic ruling came from the facts of three cases that were consolidated into one opinion. In each of the three—Bostock v. Clayton County; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC—an employee was fired from their job on the basis of their sexual orientation or gender identity. 


A Textualist Take


Justice Gorsuch's opinion was rooted in a judicial philosophy called "textualism." Textualism is a way of interpreting by analyzing the clear, plain text of what a law says. This is different than, say, and originalist approach, which would lead the Court to base their decision on what the drafters meant and how the drafters intended for it to be applied.


The Court outlined two examples of how "on the basis of . . . sex" applies to discriminatory actions against LGBTQ employees.


Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.


The opinion went further to specify an example involving a transgender worker:


Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.


Questions of Religious Liberties May Remain Open


While Bostock is widely seen as a significant victory for civil liberties, religious liberties were also referenced toward the end of the opinion. Justice Gorsuch pointed out that religious liberty claims (brought under the Free Exercise Clause of the First Amendment) could potentially impact the decision's constitutional protections for LGBTQ individuals. Additionally, the opinion was explicitly written as narrow in scope and limited to the issue presented. The explicit statement that the ruling should not be construed to automatically extend to other issues under federal and state law regarding topics such as sex-specific dress codes, bathrooms, and locker rooms. However, this ruling may be a signal that federal and state courts throughout the country may reach a similar result in cases considering discrimination in other contexts.


What Employers Need to Know


Organizations with more than fifteen employees as well as government agencies can now face major financial penalties if the employer intentionally discriminates against a gay or trans employee. Depending on the employer's size, the employer could be required to pay out compensatory and punitive damages.


Employers should use this as an opportunity to review their policies and procedures to ensure compliance with Bostock and Title VII, including their non-discrimination policies, handbooks, and other materials.


For questions involving this or other legal issues, please contact David M. Caves by email or phone, at 319-363-0101.


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