By: Joseph Benincasa & Valerie Timmerman
Title VII of the Civil Rights Act of 1964 has long outlawed discrimination of employees on the basis of their sex.[1] However, Title VII did not prohibit an employer from discriminating against an employee due to their sexuality or transgender status until the recent decision in Bostock v. Clayton County Georgia.[2] On June 15, 2020, the Supreme Court in Bostock afforded Title VII protection to homosexual and transgender employees, ultimately prohibiting discrimination on the basis of sexual orientation or transgender status.[3] In reaching this holding, Justice Gorsuch focused on the ordinary public meaning of Title VII’s language which states it is:“ “unlawful … for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”[4]
The Bostock case emerged from the Second, Sixth, and Eleventh Circuits, where each employee claimed that their employer had fired them due to their sexual orientation or transgender status.[5] One of the biggest issues in Bostock was determining the definition of the term “sex” as it is used under the statute of Title VII. [6] Considering the term’s definition in 1964, the Court conceded to the employers’ interpretation–that “sex” refers to the biological difference between males and females.[7] Second, the language of Title VII, “because of,” calls for the court’s use of the “‘traditional’ standard of but-for causation”–meaning that the discrimination would or would not have occurred “but for” the employee’s sexual orientation or transgender status.[8] Furthermore, in 1964, as it is today, to “discriminate” means to “treat[] that individual worse than others who are similarly situated.” [9] Lastly, the Court specifically noted that Congress wrote Title VII to apply for discrimination against individuals– not groups–and therefore, employers would be liable for their adverse treatment against one particular homosexual or transgender individual even if they gave preferential treatment to homosexual or transgender employees in general.[10]
After defining the key terms under Title VII, the Court explained that Title VII prohibits discrimination on the basis of an individual’s sexuality or transgender status because it’s impossible to discriminate against an employee for being homosexual or transgender without discriminating against that individual based on their sex.[11]Although the term sex under Title VII is defined as the biological distinction between males and females, an employer who discriminates against an employee because of their sexuality or transgender status inescapably relies on that employee’s sex when deciding to act adversely.[12] For example, if the employer fires a male employee solely because of his attraction to other men, the employer fires the employee for traits that they accept in other employees who are not male (i.e female employees who are heterosexual).[13] Another example is where an individual who is fired because they identified as male at birth but now identify as female; the employer would be punishing that individual for traits it would have accepted if the individual was a biological female at birth.[14] Thus, the employer inherently relies, in part, on the individual’s sex when they discriminate against an employee because of their sexuality or transgender status.
Although the dissent argued that Title VII may have expanded further than what Congress expected in 1964, “whether a specific application was anticipated by Congress ‘is irrelevant.’”[15] The ordinary meaning of terms in 1964 govern, but the purported expected result does not.[16] In fact, many, if not most, applications of Title VII were unanticipated by Congress when enacting Title VII, such as: sex-segregated job advertising[17], treatment of father’s vs. mothers,[18] and sexual harassment amounting to sex discrimination.[19]
Therefore, the Court in Bostock recognized that the plain
language of Title VII prohibits employers from discriminating against an
individual based on their sexual orientation or transgender status.
[1] See Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1737 (2020).
[2] Id.
[3] Id.
[4] Id. at 1738 (emphasis added) (citing 42 U.S.C.S. § 2000e-2 (a)(1)).
[5] Id. at 1737-38. Mr. Bostock, a child welfare advocate who was fired after joining a gay recreational softball league lost on his Title VII claim in the Eleventh Circuit. Id. Mr. Zarda, who was fired from a skydiving company days after mentioning that he was gay, won on his Title VII claim in the Second Circuit. Id. at 1738. Ms. Stephens, who presented as a male when she began work at a funeral home and was fired after informing her employer of her intention to live as a woman, won on her Title VII claim in the Sixth Circuit. Id.
[6] Id. at 1739. (“We proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.”).
[7] Id.
[8] Id. at 1740–1.
[9] Id. at 1740.
[10] See Id. at 1740-1741 (“It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall.”).
[11] Id. at 1741.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at 1750-51 (quoting Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998)).
[16] Id. at 1750.
[17] See id. at 1752 (citing Franklin, 125 Harv. L. Rev., at 1345 (citing Press Release, EEOC (Sept. 22, 1965)).
[18] See id. (citing Phillips v. Martin Marietta Corp., 411 F.2d 1 (CA5 1969), rev’d, 400 U.S. 542, 544(1971)).
[19] See id. (citing Barnes v. Costle, 561 F.2d 983, 990 (CADC 1977)).
