Working for Justice

Supreme Court Rules Employment Discrimination Based on Sexual Orientation and Gender Identity Illegal in All Fifty States

Posted June 16th, 2020 by in Employment Discrimination.

Yesterday, in its long-anticipated decision in Bostock v. Clayton County, Georgia, the U.S. Supreme Court squarely held that discrimination against gay and transgender employees in the workplace is illegal under federal law.  The case arose from the terminations of three brave plaintiffs from their places of employment: Gerald Bostock, who was fired from his job as a county employee in Georgia after he joined a gay recreational softball league; Donald Zarda, a skydiving instructor in New York who was fired after mentioning that he was gay while on the job; and Aimee Stephens, who was fired from her job at a funeral home in Michigan after she came out as transgender by informing her employer that she planned to live and work as a woman upon returning from vacation.[1]  All three employers admitted that they fired the gay and transgender employees because they were gay and transgender and asserted that doing so was perfectly legal under federal law.[2]

Of course, firing someone simply because they are gay or transgender is wrong.  Yet, until yesterday, the question of whether Mr. Bostock, Mr. Zarda, and Ms. Stephens had any legal recourse to challenge their terminations depended almost entirely on geography.  Take the states that the three plaintiffs were from: New York and Michigan have state laws that prohibit discrimination based on sexual orientation and gender identity, but Georgia currently doesn’t.[3]  Meanwhile, the U.S. Courts of Appeals were divided on the question of whether Title VII of the Civil Rights Act of 1964, the landmark federal employment discrimination statute, prohibits discrimination on the basis of sexual orientation and gender identity.[4]

In Bostock, the Supreme Court finally brought order to this inconsistent state of affairs and decisively held that Title VII prohibits discrimination based on sexual orientation and transgender status—regardless of what zip code you live in.  Title VII makes it unlawful for an employer to discriminate against an employee “because of” that individual’s “sex.”[5]  As Justice Gorsuch explains in the Bostock majority opinion, the word “sex” in the statute has been interpreted in a straightforward way by the Supreme Court since the law’s passage, which has led to some results that the drafters of the law in 1964 may not have immediately anticipated.[6]  So, for example, in 1971 the Supreme Court held that a company discriminates based on sex by refusing to hire women with young children,[7] in 1978 the Court held that an employer discriminates based on sex when it requires women to make larger pension fund contributions than men because women tend to live longer,[8] and in 1998 the Court held that a male plaintiff’s Title VII claim of same-sex sexual harassment could proceed.[9]  In Justice Gorsuch’s words, “the lessons these cases hold” are “familiar”:  First, it doesn’t matter what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.  (So, for example, a policy against hiring gays and lesbians is still sex discrimination even if it isn’t described as sex discrimination by the relevant employer or employees.)  Second, the plaintiff’s sex need not be the sole or even primary cause of the challenged employment decision.  (So, for example, demoting all women with children because they are women with children is sex discrimination, even if the employer enthusiastically promotes all childless women.)  And third, an employer cannot escape liability by demonstrating that it treats males and females the same as groups.  (So, for example, refusing to hire any job candidate with a same-sex spouse—regardless of whether the job candidate is a man or woman—is still sex discrimination, even though the employer is superficially treating both sexes “equally”).[10]

The Bostock decision is at once both obvious and profound.  As Justice Gorsuch emphasizes, Title VII, a statute that Congress drafted in “in starkly broad terms” more than fifty years ago, aimed to eradicate “discrimination against individuals and not merely between groups” by holding employers liable whenever they harm an employee because of that employee’s sex—an approach that “virtually guaranteed that unexpected applications would emerge over time.”[11]  In so explaining, the Court seems to say, the Bostock ruling should not be viewed as that surprising.  And yet, it is a seismic development in the struggle for LGBT equality in this country.  As Gerald Bostock, the only surviving plaintiff in the case, remarked: “Homophobia and transphobia are wrong, as I said from the beginning, and any type of workplace discrimination is unacceptable.  To hear the opinion read this morning validates what I’ve been saying for the last seven years.  I am elated and thrilled.”[12]

The employers defending their discriminatory firings of Mr. Bostock, Mr. Zarda, and Ms. Stephens argued that the Court should not rule in the plaintiffs’ favor based on the “no-elephants-in-mouseholes” canon.[13]  In essence, they argued that, if Congress intended to prohibit discrimination based on sexual orientation and gender identity through Title VII (an intention of “elephant” proportions), it wouldn’t have done so through referring only to discrimination based on “sex” (a “mousehole”), but rather would have acknowledged sexual orientation and gender identity explicitly.  But as Justice Gorsuch aptly observed, Title VII’s sex discrimination provision was never a “mousehole”; it has always had transformative potential since the day it was enacted: “This elephant has never hidden in a mousehole; it has been standing before us all along.”[14]

If you believe you may have been discriminated against based on your sexual orientation or gender identity, you should meet with an attorney to determine what your legal options are.  Sanford Heisler Sharp, LLP has experienced LGBTQ discrimination lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.

Footnotes

[1] Bostock v. Clayton County, Ga., Nos. 17-1618, 17-1623 & 18-107, 2020 WL 3146686, at *3 (June 15, 2020).

[2] See id. at *9 (“For present purposes, [the employers] do not dispute that they fired the plaintiffs for being homosexual or transgender. . .  Rather, the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII.”).

[3] Movement Advancement Project, Issue Brief: Can LGBT People Be Legally Fired? 3 (July 2019), https://www.lgbtmap.org/file/2019SCOTUSTitle%20VIICasesBrief.pdf.

[4] See Jean Galbraith & Beatrix Lu, Gender-Identity Protection, Trade, and the Trump Administration, 129 Yale L.J. Forum 44, 53–54 (2019).

[5] 42 U.S.C. § 2000e–2(a)(1).

[6] See Bostock, 2020 WL 3146686, at *16.

[7] Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam).

[8] L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978).

[9] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).

[10] See Bostock, 2020 WL 3146686, at *9.

[11] Id. at *17.

[12] Tim Teeman, Plaintiff Gerald Bostock ‘Elated’ After Supreme Court LGBTQ Victory, Now His Case Returns to Georgia, The Daily Beast (June 15, 2020 3:33 PM ET), https://www.thedailybeast.com/plaintiff-gerald-bostock-elated-after-supreme-court-lgbtq-victory-now-his-case-returns-to-georgia.

[13] See Bostock, 2020 WL 3146686, at *17.

[14] Id.

Alok Nadig is an Associate in the New York office of Sanford Heisler Sharp, LLP. He received his Bachelor of Arts degree and Bachelor of Music degree, each magna cum laude, from Northwestern University, where he was elected to Phi Beta Kappa.
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