Caseflicks

Supreme Court of the United States • 2020

Bostock v. Clayton County

590 U.S. 644 | 140 S. Ct. 1731 | 207 L. Ed. 2d 218

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Takeaway

In short, Bostock holds that firing an employee merely for being gay or transgender is intentional discrimination because of sex under Title VII, because sex is necessarily a but-for cause of that decision.

Background

Gerald Bostock, a longtime child-welfare advocate for Clayton County, Georgia, was fired shortly after joining a gay recreational softball league. Donald Zarda, a skydiving instructor, was fired days after disclosing that he was gay. Aimee Stephens, an employee of R. G. & G. R. Harris Funeral Homes, was fired after informing her employer that she would live and work as a woman. Each alleged that the employer discharged the employee because of sexual orientation or transgender status, in violation of Title VII of the Civil Rights Act of 1964.

The Eleventh Circuit held that Title VII did not prohibit sexual-orientation discrimination and dismissed Bostock's claim. By contrast, the Second Circuit held that Title VII covered Zarda's sexual-orientation claim, and the Sixth Circuit held that it covered Stephens's transgender-status claim. The Supreme Court granted review to resolve the circuit split. Zarda and Stephens died while their cases were pending, but their estates continued the litigation.

Issues

Issue #1

Whether Title VII's prohibition on discharging an individual "because of" that individual's sex bars an employer from firing an employee merely for being homosexual or transgender.

Holding

Yes. An employer that intentionally fires an individual merely for being gay or transgender violates Title VII.

Reasoning

The Court began with Title VII's text: an employer may not discharge or otherwise discriminate against an individual because of that individual's sex. Assuming, as the employers urged, that "sex" in 1964 referred to biological distinctions between male and female, the statutory phrase "because of" still incorporates ordinary but-for causation. Sex need not be the sole, primary, or most obvious cause of the decision; it is enough that changing the employee's sex would have changed the employment outcome.

Title VII addresses intentional disparate treatment of individuals, not merely unequal treatment of men and women as groups. Thus, an employer violates the statute when it intentionally treats one employee worse in part because of that employee's sex, even if the employer applies a facially similar rule to both male and female employees or treats the sexes comparably in the aggregate.

Discrimination because of homosexuality necessarily requires consideration of sex. If an employer fires a man for being attracted to men but would retain a woman attracted to men, the employee's sex is a but-for cause of the discharge. The employer cannot avoid that conclusion by saying its ultimate objective was to discriminate based on sexual orientation rather than sex; implementing that objective necessarily applies a sex-based rule.

The same is true for discrimination against transgender persons. If an employer penalizes a person identified as male at birth for living as a woman while accepting the same conduct from a person identified as female at birth, the employer treats the first person differently in part because of sex. Transgender-status discrimination therefore necessarily entails intentional sex discrimination against the affected individual.

The Court found confirmation in Phillips v. Martin Marietta Corp., Los Angeles Department of Water and Power v. Manhart, and Oncale v. Sundowner Offshore Services. Those decisions establish that Title VII reaches discrimination involving an additional trait or motive, protects individuals rather than groups, and applies even when the particular form of discrimination was not the principal evil Congress had in mind.

Issue #2

Whether an employer may defeat a Title VII claim by showing that sexual orientation or transgender status, rather than sex alone, was the stated reason for the discharge, or by showing that it would impose the same rule on gay and transgender men and women alike.

Holding

No. Neither an additional motive nor evenhanded group-level treatment eliminates liability when sex is a but-for cause of an intentional adverse action against an individual.

Reasoning

The Court rejected the employers' proposed comparison that would hold sexual orientation constant by changing both the employee's sex and the sex of the people to whom the employee is attracted. That approach would effectively require sex to be the sole or primary cause of the decision, contrary to Title VII's but-for standard and precedents such as Phillips, where sex plus parenthood produced unlawful discrimination.

An employer who fires both gay men and lesbians, or both transgender men and transgender women, does not escape Title VII. The statute makes each intentional act of discrimination against an individual because of sex a separate violation. A policy that burdens men and women in parallel can therefore create liability for each affected employee.

The employer's labels do not control. Calling a practice discrimination based on "homosexuality," "transgender status," "motherhood," or another nonlisted trait does not answer the statutory question. The legal inquiry is whether sex was one but-for cause of the adverse treatment of the individual employee.

Issue #3

Whether Title VII should be read narrowly because Congress in 1964 may not have expected the statute to reach sexual-orientation or transgender-status discrimination, and because later Congresses considered but did not enact more specific protections.

Holding

No. Clear statutory text governs even when a particular application was unexpected, and later legislative inaction cannot create an unstated exception to Title VII's broad command.

Reasoning

The Court distinguished using historical sources to identify a term's original public meaning from using perceived legislative expectations to override that meaning. The employers did not show that the relevant statutory words had a different ordinary meaning in 1964. Rather, they argued that the result was unexpected. Under the Court's precedents, an unexpected application of broad statutory language demonstrates the breadth of the rule, not ambiguity in its meaning.

Congress's decision not to name every application of sex discrimination does not create a "donut hole" exception. Title VII expressly prohibits discrimination because of sex in broad terms, and the Court had previously applied that language to sexual harassment and discrimination against mothers even though Congress did not separately list those categories.

The Court declined to resolve questions about bathrooms, locker rooms, dress codes, other statutes, or potential religious-liberty defenses. Those matters were not before the Court. It noted that Title VII contains a religious-organization exemption, the First Amendment protects a religious institution's relationship with its ministers, and the Religious Freedom Restoration Act may provide protection in appropriate future cases.

Dissents

Justice Alito

Reasoning

Justice Alito, joined by Justice Thomas, argued that the Court legislated rather than interpreted. In his view, "sex" in Title VII meant biological male or female in 1964, while sexual orientation and gender identity are distinct concepts. Because Congress has repeatedly considered but never enacted amendments adding sexual orientation and gender identity to Title VII, he concluded that the Court effectively adopted legislation that Congress declined to pass.

He rejected the majority's but-for analysis. An employer can, in his view, discriminate against gay, lesbian, or transgender persons without discriminating because of biological sex—for example, by adopting a rule against employing any gay, lesbian, or transgender person. The employer's motive in that circumstance is sexual orientation or gender identity, not the person's status as male or female.

Justice Alito maintained that proper textualism requires examining how ordinary Americans in 1964 would have understood the phrase "discrimination because of sex." Social and legal norms at the time, including widespread official discrimination against homosexual persons and the relative unfamiliarity of modern gender-identity concepts, showed that the public would not have understood Title VII to reach these claims.

He also criticized the majority for declining to confront the broader implications of its reasoning. He predicted consequential disputes involving sex-separated bathrooms and locker rooms, women's sports, housing, religious employers, health-care coverage, pronoun usage, and constitutional sex-discrimination doctrine. In his view, Congress, not the Court, should weigh and accommodate those competing concerns.

Justice Kavanaugh

Reasoning

Justice Kavanaugh agreed that gay and lesbian Americans deserve equal dignity and acknowledged the powerful policy case for protecting them from employment discrimination. But he maintained that the constitutional question was "Who decides?" In his view, Congress and the President, rather than the Court, possess authority to amend Title VII to add sexual-orientation discrimination.

His central interpretive objection was that courts must follow a statute's ordinary public meaning, not merely the literal implications generated by separating a phrase into individual words. In ordinary English, he argued, discrimination because of sex and discrimination because of sexual orientation are distinct categories. A literal but-for analysis cannot displace that settled ordinary meaning.

Justice Kavanaugh emphasized that Congress, federal agencies, Presidents, States, courts, and the public have long treated sex discrimination and sexual-orientation discrimination as separate concepts. When Congress wished to prohibit both, it regularly named both. That consistent usage, he argued, demonstrated that Title VII's general ban on discrimination because of sex did not itself include sexual orientation.

He concluded that the majority had effectively rewritten Title VII while characterizing its result as textual interpretation. Although he recognized the importance of the practical victory for gay and lesbian Americans, he believed that achieving it through judicial revision rather than legislation undermined the separation of powers and democratic accountability.