On Monday, in a 6-3 decision led by Justice Gorsuch, and joined by Chief Justice Roberts, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits discrimination against individuals because of their “race, color, religion, sex, or national origin,” also prohibits discrimination based on an individual’s sexual orientation and transgender status. Justices Alito, Thomas and Kavanaugh dissented.
The Court’s decision, which was the result of three underlying cases, resolved an important circuit split and was among the most anticipated decisions this term. Until recently, federal courts had consistently reached a different conclusion than the Court did on Monday, relying on logic similar to that set forth in Justice Alito’s dissent. The Supreme Court’s decision significantly advances legal protections for LGBTQ Americans.
This alert discusses the Court’s landmark decision and the underlying cases that led to this decision, and offers some practical suggestions and thoughts about what may come next.
Three Cases and a Circuit Split are Resolved
The Supreme Court’s decision was delivered as a combined ruling on three significant cases, two based on claims of sexual orientation discrimination – Bostock v. Clayton County, Georgia, No. 17–1618 and Altitude Express, Inc. v. Zarda, No. 17–1623 – and one based on claims of gender identity discrimination – R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18–107. While each case involved different facts and issues (including the interplay between religious freedom and Title VII as set forth in the Harris case), the issue to be resolved by the Supreme Court was whether the term “sex” in Title VII includes sexual orientation and transgender status. In many cases addressing claims of employment discrimination, the employer disputes the reasons for the alleged discriminatory conduct. However, notably, in all three of these cases, the employers admitted that they terminated the plaintiff’s employment because of the plaintiffs’ sexual orientation or transgender status, claiming that such status was not protected by Title VII.
The lower courts were divided on how the issue should be resolved. The Court of Appeals for the Second Circuit in Zarda (en banc) and the Court of Appeals for the Sixth Circuit in Harris concluded that the Title VII claims were cognizable. However, the Court of Appeals for the Eleventh Circuit in Bostock reached the opposite conclusion, finding that the plain meaning of “sex” in Title VII did not include sexual orientation.
A Landmark Decision
The Court agreed with the Second and Sixth Circuit decisions. The majority opinion, written by Justice Gorsuch, rested on a foundation of textualism and the ordinary meaning of Title VII. In rendering its decision, the Court acknowledged that Title VII does not expressly mention “sexual orientation” or “gender identity,” and that the term “sex,” as it was understood in 1964, referenced the biological differences between male and female. Nevertheless, the Court ultimately held that the statutory language is clear: a prohibition on discriminating against individuals based on sex necessarily includes a prohibition on discriminating against individuals based on sexual orientation or transgender status. Specifically, Judge Gorsuch wrote that “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.” Therefore, the Court reasoned, “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” and it is impossible for employers to discriminate against a person for being homosexual or transgender without discriminating against them on the basis on sex; they are "inextricably bound up with sex.”
The majority rejected several arguments based on different interpretations of the text and social expectations, finding that prior precedent had already, in large part, settled the dispute. Specifically, the Court cited to prior decisions in Los Angeles Dept. of Water and Power v. Manhart,1 Phillips v. Martin Marietta Corp.,2 and Oncale v. Sundowner Offshore Services, Inc.,3 noting three points that are key to deciding issues of employment discrimination: (1) an employer’s underlying motivations and the method by which it labels a discriminatory practice are irrelevant; (2) an employee’s sex need not be the sole or primary cause of the employer’s discriminatory conduct; and (3) an employer cannot escape liability by demonstrating that it subjects groups of males and females to the same rule.
Furthermore, the Court rejected the argument that it should consider, and defer to, legislative history, as well as the argument that people in 1964 must not have intended Title VII to protect employees from discrimination on the basis of sexual orientation or transgender status. Instead, the Court reasoned that there was no ambiguity that would require an inquiry into legislative history and, whether expected or not, the meaning of the statutory language was clear. As the Court held, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
Finally, the majority rejected the argument that its holding would undermine religious or other freedoms. Specifically, the Court noted that the potential tension between the current holding and any issue of religious freedom could be resolved, but need not be addressed in this decision. Rather, those issues would have to wait for future cases.
The Dissenting Opinions
Justice Kavanaugh issued his own dissenting opinion, while Justice Alito, joined by Justice Thomas, wrote a separate dissent. Both dissenting opinions argued that the majority overstepped the bounds of the judiciary and decided an issue that was best left to Congress. As Justice Alito wrote, “[t]here is only one word for what the Court has done today: legislation.” The dissenting opinions noted that Congress repeatedly proposed legislation to amend Title VII to protect sexual orientation and transgender status, but had not yet succeeded in doing so. As Justice Kavanaugh stated, “it was Congress’s role, not this Court’s, to amend Title VII.”
Justice Alito and Justice Thomas’ separate dissenting opinion went even further, attacking the majority’s textualist analysis and noting a list of far-reaching issues that they believe will emerge as a result of the majority’s opinion. According to the dissenting justices, textualism requires consideration of the reasonable person’s ordinary and “commonsense” interpretation of the meaning of the text as it was written in 1964. Justice Alito asserted that the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity,” and found that this was the understanding in 1964 and remained so today in spite of the majority’s analysis. The dissenting opinion also noted that until 2017 every appellate court that addressed the issue had concluded that Title VII’s text did not support the majority’s interpretation. Furthermore, the opinion included a discussion of historical hiring practices and state and local laws, which support the conclusion that many people believed that the term “sex” in Title VII did not include protections for sexual orientation or transgender status.
In concluding his dissent, Justice Alito called attention to the far-reaching consequences that this decision may have on freedom of religion, freedom of speech, and personal privacy and safety. He noted that there are over 100 federal statutes that mirror the language of Title VII and prohibit discrimination because of “sex” and the application of all of these statutes may need to be rethought. As it relates to Title VII itself, Justice Alito stated that the majority dismissed concerns and questions about women’s sports, bathrooms, locker rooms, or anything else of the kind - issues which have surfaced repeatedly in lower court cases. He also asserted that this decision will create concerns in other areas of federal law, including cases of employment by religious organizations, housing and Title IX, healthcare under the Affordable Care Act (“ACA”), and freedom of speech, including the use of pronouns. Finally, Justice Alito discussed constitutional law concerns associated with the Equal Protection Clause. Specifically, he noted that it is unclear whether courts will apply a “heightened” standard of review when considering laws that are alleged to discriminate on the basis of sexual orientation or transgender status.
Practical Considerations and Issues to Watch
As employers and the general public consider the practical effects of this decision, there are two key considerations:
First, employers may not discriminate against an individual because of their sexual orientation or transgender status. This decision extends Title VII’s protections to millions of LGBTQ workers throughout the country. While this protection will be new in many places, approximately twenty-one states and the District of Columbia, in addition to many cities and municipalities, have already enacted specific laws prohibiting workplace discrimination on the basis of sexual orientation or gender identity. Employers throughout the country should review and update their practices and policies to ensure that they are consistent with the Court’s opinion. Further, employers should provide additional training to ensure that all employees understand the new law and how it affects hiring, disciplinary, and termination issues.
Second, employers should closely follow developments in the application of this new precedent, as well as the possible effects on Title IX, the ACA, and freedom of religion and speech. As both the majority opinion and Justice Alito’s dissenting opinion note, there are more cases to come about how the Court’s ruling will affect the interpretation of other laws and statutes. In particular, the interaction between the Court’s holding and religious freedom will be carefully watched. Indeed, in the Harris case, the employer raised defenses based on his religious beliefs, but those issues were not before the Court and were not decided.
We may get our first glimpse of the decision’s effect when the Court addresses two pending cases involving the application of the ministerial exception to federal anti-discrimination laws - an exception that allows religious organizations, in limited circumstances, to escape prohibitions against discrimination. The two cases, Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267, and St. James School v. Biel, No. 19-348, have been consolidated and oral arguments were heard before the Court on May 11, 2020. Justice Alito cites both cases in his dissent, while the majority notes the interplay of religious freedom and hiring. Although these two cases do not include any issue of sexual orientation or transgender discrimination, the Court’s broad interpretation of Title VII may influence the Court’s decision in applying the ministerial exception under federal anti-discrimination law. We expect the Supreme Court will render a decision on these cases soon. In the meantime, we will continue to monitor the impact of the Court’s landmark decision and bring you any new developments.
1) 435 U.S. 702 (1978).
2) 400 U.S. 542 (1971).
3) 523 U.S. 75 (1998).