By a 6-3 majority, the Supreme Court in Bostock v. Clayton County held that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity.
The decision consolidates three cases: two involving gay men who were fired by their employers after their employers learned that they were gay and one involving a transgender woman who was fired after telling her employer that she would embrace her gender identity at work. All sued under Title VII of the Civil Rights Act of 1964, which includes a prohibition on discrimination “because of sex.” They argued that because firing an employee because of their sexual orientation or transgender identity necessarily hinges on the employee’s sex, it is discrimination on the basis of sex and is prohibited under Title VII.
The majority in Bostock agreed. The opinion, authored by Justice Gorsuch, found that discriminating on the grounds that someone is gay or transgender requires an employer to intentionally treat individual employees differently because of their sex and thus violate Title VII. The majority relied on four main arguments. First, “because of” requires but-for causation, but it does not need to be the only but-for cause: so, when an employer fires an employee because she is homosexual or transgender, that employee is still fired because of sex, even though something else (romantic attraction, gender identity) is also motivating the firing. The presence of that “something else” doesn’t erase the “because of sex.” Second, while Title VII requires intentional discrimination the employees still had a claim because, even though the employer’s ultimate intent was to discriminate on the basis of gay or transgender status, that employer must intentionally discriminate because of sex along the way. Third, Title VII is phrased in terms of how an employer may not treat an individual employee, so it is no defense for an employer to say there was not sex discrimination because one gay man, and not all men, were discriminated against by the employer. Fourth, the principles of statutory interpretation support this reading of Title VII. As the Court explained in Oncale v. Sundowner Offshore Services, Inc. (a sexual harassment suit by a man who was harassed by men), something need not constitute the “principal evil” the statute was intended to address to be a violation of that statute. Furthermore, failing to speak directly to a specific case that falls within a more general statutory rule does not create a tacit exception, so the Court applies the broad rule.
Justice Alito, joined by Justice Thomas, dissented. Justice Kavanaugh authored a separate but similar dissent. The dissents argued that the principles of statutory interpretation require interpreting statutes to mean what they conveyed to reasonable people at the time they were written. Justice Kavanaugh additionally emphasized the need to interpret Title VII in light of its ordinary meaning, rather than its literal one. The dissents also argued that Title VII’s prohibition of intentional discrimination because of sex does not encompass everything that is defined in reference to sex. To do so, they rejected the argument that that Title VII is framed in terms of how an employer may not treat an individual, instead defining the prohibited discrimination as categorical. Lastly, the dissents argued that the majority’s definition of discrimination “because of sex” will have far-reaching consequences on areas including sex-segregated sports under Title IX and what the Affordable Care Act requires.
While the decision is certainly a victory for LGBTQ civil rights, it has real limitations. The Court explicitly did not address the question of what happens when an employer claims Title VII compliance infringes on the employer’s free exercise of religion, as the question was not properly before the Court.
Relatedly, the Court has already granted cert in Fulton v. City of Philadelphia. There, Philadelphia terminated an adoption/foster placement contract with a Catholic organization that violated the city’s nondiscrimination policy by discriminating against same-sex couples. The Court will consider whether the city’s refusal to contract with the organization because it discriminates against same-sex couples—which the organization argues is animated by strongly held religious beliefs—violates the free exercise clause of the First Amendment. While previous cases suggested that private businesses may have a First Amendment right to refuse service on religious grounds, this case is particularly concerning to LGBTQ advocates because it implicates the government’s ability to adhere to non-discrimination policies in its own conduct (selecting government contractors to carry out its work).
While Bostock’s promise may be limited by free exercise challenges in the future, it is likely to remain a powerful tool for LGBTQ people facing employment discrimination in many settings.