By Joseph Benincasa & Valerie Timmerman
The Supreme Court’s June 2020 decision in Bostock v. Clayton County, Georgia–famous for extending Title VII protection to employees who were discriminated against on the basis of their sexual orientation or gender identity– could also affect how courts rule on other types of claims under Title VII and similar federal anti-discrimination statutes.[1] Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees (or prospective employees) “because of” their race, color, religion, sex, or national origin.[2] Bostock leaves intact the rule that a plaintiff who claims discriminatory treatment under Title VII needs to prove their protected class was at least one motivating factor for the adverse employment decision. On the other hand, prior to Bostock, plaintiffs bringing an ADEA discrimination claim, or a Title VIII retaliation claim, were typically required by courts to prove their protected class was the sole “but-for cause” for the adverse employment action.[3] Due to Bostock, the causation standard for these types of claims will most likely be altered. Justice Gorsuch provides insightful and ground-breaking dicta explaining, in the context of applying Title VII’s command to prohibit actions taken “because of sex,” how courts should interpret the phrase “because of.” The court explained that “because of” the statutorily-protected characteristic means “but for” that characteristic, but the “but for” standard of causation does not require the discriminatory reason to be the sole reason for the employer’s challenged action–contrary to the traditional manner of applying the but-for-causation standard.[4]
Under the traditional but-for causation standard a plaintiff must prove that a particular outcome would not have occurred “but for the purported cause.”[5] As a practical matter, a plaintiff was required to prove their protected class was the sole but-for cause; if their protected class was just one of multiple causes for the adverse decision, the plaintiff was unlikely to prevail. Justice Gorsuch explains if Congress intended for the causation standard to be proof that the discriminatory reason was the sole but for cause, they would have made that much more evident within the language of the statute.[6] Therefore, claims such as, ADEA discrimination claims and Title VII retaliation claims, which are governed under the “because of” language will now (most likely) require a plaintiff to prove their protected class was just one but-for cause for the adverse employment decision, not the sole.
As a result of Justice Gorsuch’s interpretation in Bostock, plaintiffs making claims under Title VII, the ADEA, and ADA will benefit tremendously. Under a broadened standard, employees bringing these types of claims will be more successful in surviving employer’s motion for summary judgment, since their burden of proof will be much easier to satisfy.[7] This will most likely cause an increase in employment discrimination cases reaching trial, ultimately giving plaintiffs a greater chance of settling or prevailing on their Title VIII, ADEA, or ADA claim.
Lastly, the public may expect to see changes in the workplace as a result of the Bostock decision. For example, employers’ anti-discrimination policies and EEO training programs should be updated to reflect the updated discrimination policies under Title VII.[8] Bostock also opens the door for questions such as whether mandated healthcare benefits must cover sex reassignment surgeries or whether sex-based decisions in educational settings (ie. male and female separated sport teams) are permissible.[9] For now, the Bostock Court expressly noted its desire to leave these questions for another day.[10]
The primary importance of Bostock is that it provided Title VII protection to homosexual and transgender employees. With that being said, it also foreshadows the amending of the causation standard under Title VII and any other anti-discrimination law governed by the “but for” causation standard, ultimately altering the employment discrimination landscape forever.
[1] Kelly S. Hughes, ‘But-For’ Causation Under Bostock, Ogletree Deakins (June 24, 2020), https://ogletree.com/insights/but-for-causation-under-bostock/.
[2] Id. (citing 42 U.S.C. § 2000e–2(a)(1)).
[3] See Braden Campbell, Justices LGBT Ruling May Mean More Bias Cases Reach Trial, LAW360 (June 19, 2020) https://www.law360.com/articles/1285042.
[4] See Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1739 (2020).
[5] See id. at 1740 (“That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause.”).
[6] Id. at 1739.
[7] Hughes, supra note 1; see also Campbell, supra note 3.
[8] Corbin Carter & Michael S. Arnold, Supreme Court Rules that Title VII Protects LGBTQ Employees, Mintz (June 16, 2020) https://www.mintz.com/insights-center/viewpoints/2226/2020-06-16-supreme-court-rules-title-vii-protects-lgbtq-employees.
[9] Id.
[10] Bostock, 140 S. Ct. at 1753.
