What Employers - And All Regulated Industries - Should Know About Bostock

Bryan Cave Leighton Paisner

On June 15, 2020, the U.S. Supreme Court held in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 prohibits an employer from firing, refusing to hire, or otherwise discriminating against an individual because of their identity as gay or transgender. The decision marks a milestone victory for LGBTQ+ employees and advocates. It also set off a statutory-interpretation debate amongst the justices that may prove to have far-reaching consequences beyond the realm of workplace protections.

The consolidated case involved three separate plaintiffs. Two, Gerald Bostock and Donald Zarda, were gay men. The third, Aimee Stephens, was a transgender woman. All three plaintiffs were longtime employees who were fired shortly after their respective employers became aware of their identities as gay or transgender. They each sued, alleging sex discrimination under Title VII. Despite the similarities between their cases, the U.S. Court of Appeals for the Eleventh Circuit affirmed dismissal of Bostock’s case, while the Second Circuit and (ultimately) the Sixth Circuit allowed Zarda’s and Stephens’s respective claims to proceed. The Supreme Court granted certiorari.

In an opinion by Justice Gorsuch, writing for a majority of six justices, the Court held that discrimination on the basis of sexual orientation or gender identity is necessarily discrimination “because of sex,” in violation of Title VII. The Court held that discriminating against, for example, a man for being attracted to men but not a woman for being attracted to men is paradigmatic of the sex-based discrimination that Title VII prohibits. The same holds true for discriminating against a woman who was assigned the male sex at birth, but not a similarly situated woman who was assigned the female sex at birth. The Court held that its decision is compelled by a straightforward reading of the statutory text. According to the Court, legislative history, policy arguments, and other canons of statutory construction have no bearing when the statutory text is so unambiguous.  

Along the way to this result, the Court also noted various principles from previous Title VII cases that further supported its holding, including:

  • It is irrelevant how the employer labels a discriminatory practice, or the intent behind it. If an employer takes an adverse action against an employee of one sex that it would not have taken against an otherwise identical employee of another sex, that is actionable sex discrimination.
  • An employee’s sex need not be the sole or even primary basis for the employer’s discrimination. As long as sex is one but-for cause, an employee states a claim for sex discrimination under Title VII.
  • An employer’s liability does not turn on its general treatment of the sexes as groups, even if it shows that the sexes are treated equally. The text of Title VII requires a focus on the impact to individuals, not groups.

In dissent, Justice Alito (joined by Justice Thomas) accused the majority of rewriting legislation to ascribe a meaning that could not have been intended by the drafters of the Civil Rights Act in 1964. A dissent by Justice Kavanaugh likewise criticized the majority’s application of textualist principles of statutory interpretation. 

While the majority opinion stated its holding was limited to the facts of these consolidated cases in the context of Title VII, Justice Alito pointed out that over 100 federal statutes prohibit discrimination on the basis of sex, and the majority’s analysis “is virtually certain to have far-reaching consequences” to other areas. Appendix C to Justice Alito’s dissent lists the federal statutes that prohibit sex discrimination, which cover multiple industries and sectors, including banking and mortgages, small businesses, higher education, housing, government contractors, healthcare, telecommunications, and transportation, among many others.

Accordingly, while Bostock’s square holding answers only a Title VII question about workplace protections, the majority’s analysis may have implications that reach virtually all regulated industries and enterprises impacted by the various statutes that prohibit sex discrimination. Consequently, it is not only employers who should take note of the principles of Bostock. The decision undoubtedly highlights a victory for advocates of LGBTQ+ protections. Its impact may also prove to extend well beyond the workplace.    

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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