On June 15, 2020, Bostock v. Clayton County, Georgia, found its place in history as a landmark U.S. Supreme Court case for LGBTQ+ rights in the workplace. A long-awaited opinion, Bostock expanded the definition of sex in Title VII to now prohibit employers from discriminating against employees because of sexual orientation or gender identity.1 Yet, there is even more to the decision than first meets the eye. Bostock may have other important implications that employers should carefully consider.
But-for causation: In deciding Bostock, the Court endorsed the view that Title VII incorporates a “but-for” test while rejecting the “sole cause” argument. Some courts have held that employees cannot recover unless they show their protected class was the only reason the employer discriminated against them. The “but-for” test, however, provides that, so long as the employee’s protected class was one of the reasons for a challenged employment decision, Title VII is violated.
As the Court succinctly explains, “[i]f the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.”
In practical effect, this means Bostock may make it simpler for plaintiffs to meet their burden of proof and survive motions for summary judgment, resulting in more cases going all the way to trial. Under the “but-for” test, “it doesn't matter if other factors besides the plaintiff's sex contributed to the decision.” Therefore, employers should be sure to thoroughly document the reasons for an employee’s termination or other adverse employment action and ensure compliance with company policies prohibiting such discrimination.
Individuals, not groups: Bostock also affirms that Title VII, by its own use of the term, protects and focuses on individuals, not groups or classes. In other words, as the Court explains, “it doesn't matter if the employer treated women as a group the same when compared to men as a group.” Thus, it is not a defense to an allegation of sex discrimination to argue that an employer treats both men and women equally as a group.
The Court provides a clear example: “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.” Thus, employers should be mindful in making employment decisions that the law protects each employee as an individual – and that relying upon documentation or policies of overall equal treatment between different groups will not be sufficient to defeat an employee’s claim of discrimination.
In sum, Bostock is an example that shows some cases, landmark or otherwise, may require careful consideration of less readily apparent implications. Employers are advised to consult with counsel when necessary to ensure employment decisions, policies and practices comply with all aspects of this important decision.
1 According to the American Psychological Association, sexual orientation refers to a person’s sexual and emotional attraction to other people and the behavior and/or social affiliation that may result from that attraction. Gender identity refers to one’s deeply-felt, inherent sense of being a boy, a man or male; a girl, a woman or female; or an alternative gender or lack thereof, which may or may not correspond to one’s sex assigned at birth. Available at: https://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf.