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U.S. Supreme Court Holds 6-3 that Title VII Prohibits Employment Discrimination Based on Sexual Orientation, Gender

by D. Gregory Valenza | |

In a landmark ruling for the LGBT community, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964, federal anti-discrimination law, prohibits employment discrimination on the basis of sexual orientation.

The opinion in Bostock v. Clayton County, GA is here.  The ruling was 6-3, with Justice Neil Gorsuch writing the opinion, joined by the Chief Justice and Justices Ginsberg, Sotomayor, and Kagan.  Justices Thomas, Alito, and Kavanaugh dissented.

Here is the essence of the holding:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on 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 also violatesTitle VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. 

The majority relied on past decisions, including Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998).  Oncale provides a good explanation for the Court’s ruling.  There, a male was harassed and bullied because he was gay.  The Court held, unanimously, that because the harassers attacked Oncale because he was a man who preferred men, the conduct was “based on sex.”  (On the other hand, if Oncale were a woman, the harassers would not have attacked her because she preferred men.)  Title VII prohibits employment discrimination / harassment “based on sex”  Therefore, Oncale had a case under Title VII. 

As the majority wrote in this case:

An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women. ****

By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.

What of Congress’s intent back in 1963 or ’64?

The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. 

Of course, this case will not change the law significantly for California employers. California’s Fair Employment and Housing Act already prohibits discrimination based on sexual orientation, gender identify and gender expression. However, to the extent multi-state employers already do not address sexual orientation / gender discrimination in their policies, they will have to modify policies and training to address the Court’s ruling.

Even California employers  that conduct anti-harassment training required by law must update their training materials when discussing federal law.  Another potential consequence of the ruling is that the Equal Employment Opportunity Commission will accept discrimination complaints under Title VII.  That may mean responding to EEOC charges instead of DFEH charges, but that’s not a significantly different process.

Justice Alito wrote a dissent, joined by Justice Thomas. Justice Alito argued in a lengthy opinion that the majority decision was in effect legislating a prohibition that was not included in the original Title VII. The dissenters relied on the text, legislative history, and the fact that biological sex is a different concept than sexual orientation or gender identity.  Justice Kavanaugh wrote separately in dissent. He covered a number of textual arguments and legislative history discussions as well.  Justice Alito in particular covered a variety of ripple effects that will flow from the Court’s decision.   If you have time to read them, the dissents are included after the majority opinion linked above.

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