{6 minutes to read} Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). In a landmark decision, the Supreme Court held in Bostock v. Clayton County that this provision prohibits an employer from firing an employee for being gay or transgender.
Background
Bostock is the consolidation of three cases from different circuits.
1. In Altitude Express, Inc. v. Zarda, the plaintiff mentioned that he was gay to his employer. A few days later, his employer fired him. The Second Circuit held that Title VII prohibited an employer from firing an employee because he is gay.
2. In Bostock v. Clayton County, Georgia, the employer fired the plaintiff soon after he joined a gay recreational softball league. The Eleventh Circuit held that the plaintiff had no claim for sexual orientation discrimination under Title VII.
3. In R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, the employer fired the plaintiff, who identified as male at birth, shortly after she revealed that she was transgender and planned to “live and work full-time as a woman.” The Sixth Circuit held that she could bring a Title VII claim.
The employers in these cases conceded that they intentionally fired the plaintiffs for being gay or transgender but argued that was permissible under Title VII. The Supreme Court granted certiorari to resolve the circuit split on this issue.
The Court used textual analysis to reach its holding in favor of the plaintiffs.
The Court assumed that “sex” refers to biological distinctions between male and female. The Court also noted that “because of” incorporates a “but-for” causation standard. That is, Title VII is triggered if an employment outcome would not have occurred but for the employee’s sex. There may be more than one “but-for” cause of an employer’s action, the Court emphasized.
Next, the court turned to the term “discriminate.” This means to “treat an individual worse than others who are similarly situated.” In Title VII disparate treatment cases, the plaintiff must show that the employer intentionally discriminated against her. Put together, Title VII prohibits an employer from intentionally treating a person worse in part because of that person’s sex. Thus, an employer has violated Title VII if it fires an employee for conduct or traits that the employer “would tolerate in an individual of another sex.”
Applying that rule here, the Court held that Title VII’s “because of sex” provision protects homosexual and transgender individuals. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” the Court held.
For example:
Consider two employees, one male, and one female, who are both attracted to men. If the employer fires the male employee because he is attracted to men, the employer has discriminated against the male employee because of his sex. The employer has intentionally treated him less favorably because of a trait — attraction to men — that the employer tolerates in the female employee.
The same result follows in the transgender context:
Consider an employer who fires a transgender employee who identified as male at birth but now identifies as female. If the employer does not fire an otherwise identical employee who identified as female at birth, the employer has discriminated against the transgender employee based on sex. The employer has intentionally penalized the transgender employee for conduct or traits — identifying as female — that the employer tolerates in the employee who identified as female at birth.
In sum, “homosexuality and transgender status are inextricably bound up with sex,” and are thus protected under Title VII.
It is immaterial that the Title VII drafters may not have expected the law to protect gay or transgender individuals, the Court held.
Among other things, the employers argued that few people in 1964 would have anticipated that the law would protect homosexual or transgender individuals. The Court rejected this argument. First, the statute’s text is unambiguous. As described above, Title VII prohibits sex discrimination, and it is impossible to discriminate based on homosexuality or transgender status without discriminating based on sex. Thus, there is no need to speculate about what people may have expected the law to cover in 1964.
Furthermore, the Court noted that it is not unusual for a statute to apply in situations unanticipated by Congress. For example, in Oncale v. Sundowner Offshore Services, Inc., the Court recognized that Title VII prohibits same-sex harassment, even though this was not the “principal evil” that Title VII sought to redress.
Title VII’s application to new situations “does not demonstrate ambiguity; instead, it simply demonstrates breadth,” the Court held.
If you believe that you have been discriminated against because of your sex, sexual orientation, sexual identity, or transgender status, you may wish to consult with the attorneys at Valli Kane & Vagnini LLP.
James A. Vagnini
Partner
email: [email protected]