In Bostock v. Clayton County, the U.S. Supreme Court (USSC) considered three similar cases regarding whether Title VII’s non-discrimination protections apply to gay or transgender employees. In each case, the employee sued the employer under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex.
In the first case, Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia. After Bostock began participating in a gay recreational softball league, influential community members made disparaging comments about his sexual orientation. Not long after, the county fired Bostock for conduct “unbecoming” of a county employee.
In the second case, Donald Zarda worked as a skydiving instructor at Altitude Express in New York. A few days after Zarda mentioned he was gay, the company fired him.
In the third case, Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When Stephens first started working at the funeral home, she presented as male. Two years into her service with the company, Stephen’s clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. After Stephens wrote a letter to her employer explaining that she planned to live and work full-time as a woman, the funeral home fired her, telling her “this is not going to work out.”
Title VII provides that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Accordingly, the USSC evaluated whether discrimination because of someone’s sexual orientation or gender identity was discrimination on the basis of sex.
The USSC concluded that an employer who fires an individual merely for being gay or transgender violates Title VII. The USSC analyzed the Title VII statute and previous USSC decisions. The parties conceded that the term “sex” referred to the biological distinctions between male and female. However, the Court noted that the inquiry did not end there. The USSC also reasoned that the phrase “because of” incorporated a “but-for” causation standard into Title VII. This means that an employer cannot avoid liability just by citing some other non-discriminatory factor that contributed to its challenged employment action.
The USSC also noted that in so-called “disparate treatment” cases, the Court has held that the difference in treatment must be intentional. Finally, the Court recognized that the statute’s repeated use of the term “individual” means that the focus is on “a particular being as distinguished from a class.”
Using this analysis, the USSC announced the following rule: an employer violates Title VII when it intentionally fires an individual based in part on sex. Because discrimination of the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII.
Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020).
Note:
Unlike Title VII of the Civil Rights Act of 1964, California’s anti-discrimination statute — the Fair Employment and Housing Act — expressly prohibits sexual orientation discrimination and explicitly defines discrimination on the basis of sex to include gender identity and gender expression. (Cal. Government Code sections 12926(r) & (s).)