In Bostock v. Clayton County, decided yesterday and available here, the Supreme Court of the United States held that the anti-discrimination protections of Title VII apply to gay and transgender individuals. The decision addressed three separate cases in which an employee alleged he or she was fired from his or her job because of his or her sexual orientation or transgender status. Each pursued a discrimination claim under Title VII alleging that their termination was “because of … sex” as that phrase is used in the statute, 42 U.S.C. §2000e–2(a)(1). The lower courts split on whether this allegation was sufficient to state a claim.
In a 6-3 decision authored by Justice Gorsuch, the Supreme Court held that the employees could proceed with their claims. The majority’s opinion is rooted in a literal reading of the statutory language, holding that the phrase “because of,” is the so-called “but-for” causation standard, which means that a change to the thing in question changes the outcome. The Court then held that individuals discharged because of their sexual orientation or transgender status were discharged “because of … sex” under the “but-for” standard because, in the words of the majority’s Slip Opinion at 9, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” While the Court acknowledged that in such cases there may be other factors that are part of the employer’s decision, it concluded that was irrelevant under the “but-for” standard because under that standard the test is whether the factor changed the outcome, not whether it was the exclusive factor in the decision. The majority reasoned, for example, that if an employer had a policy against employing women who have children but not against employing men who have children, that policy would not discriminate solely based on sex because having children is a factor in addition to the employee’s sex, but that policy would nevertheless clearly violate Title VII’s prohibition against discrimination because of sex.
Justices Alito, Thomas, and Kavanaugh dissented, claiming essentially that the majority opinion had usurped the role of Congress. They claimed that when Title VII was enacted in 1964, no one intended that the words “because of” sex included sexual orientation and transgender status, as evidenced by the fact, among others, that Congress has since attempted, but failed, to pass legislation protecting those classes.
We believe that the majority’s opinion is consistent with the recent trend in the law of many states, including Missouri and Illinois, which have protected transgender and sexual orientation either expressly or impliedly under their respective anti-discrimination statutes. For employers that already have policies, practices and training prohibiting discrimination against transgender and sexual orientation status, this decision may not require much additional action. Employers that have not yet addressed these issues in their policies, practices and training should do so.
The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.
This update was prepared by D. Leo Human and Charles S. Elbert.