The Supreme Court Weighs In on Discrimination Based on LGBTQ Status

Employees and plaintiffs’-side employment lawyers were pleasantly surprised in June 2020 when the United States Supreme Court held that an employer who fires an individual merely for being LGBTQ violates federal law, specifically Title VII of the Civil Rights Act of 1964. The majority opinion in Bostock v. Clayton County was authored by Justice Gorsuch and joined by five (5) additional Justices. Three Justices (Thomas, Alito, and Kavanaugh) dissented.

The lead case underlying this litigation arose out of the Eleventh Circuit Court of Appeals. The Eleventh Circuit held that it was legal for Clayton County, Georgia to dismiss Gerald Bostock, a long-time child welfare worker for the County, for “conduct unbecoming” after he joined a gay recreational softball league. Bostock argued below that terminating his employment because of his status as a gay man violated federal anti-discrimination employment law. The Eleventh Circuit disagreed.

The other two cases underlying this litigation arose out of the Sixth and Second Circuit Courts of Appeal. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. Although he, too, had worked for his employer for a lengthy period of time, shortly after mentioning that was gay, he was promptly fired. Aimee Stephens worked for R.G. & G.R. Harris Funeral Homes in Michigan. When Ms. Stephens was first hired, she presented as male. After six years with the employer, she wrote a letter to the employer announcing that she planned to “live and work full-time as a woman.” The employer summarily dismissed her, telling her “this is not going to work out.” In both Mr. Zarda’s and Ms. Stephens’ cases, the appellate courts concluded that discrimination based on LGBTQ status violated federal employment law. Therefore, between the three (3) cases, there was a difference of opinion among the appellate circuits, which prompted the Supreme Court to consider the issues raised.

Title VII of the Civil Rights Act of 1964 makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against individual . . . because of such individual’s race, color, religion, sex, or national origin.” Since the passage of the Civil Rights Act in 1964, the term “sex” has been interpreted to refer to the biological distinctions of “male” and “female.” There has been no question that a violation of the law occurs when an employer relies on an employee’s sex to discipline an employee or otherwise take an adverse action an employee. In Bostock, the Supreme Court held that discriminating against an LGBTQ employee because they are LGBTQ is inherently discrimination based on sex, and therefore, such discrimination violates the law. The crux of Justice Gorsuch’s reasoning is expressed here:

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

The majority opinion in Bostock focuses on three instructive principles in reaching its ultimate conclusion: (1) how an employer labels a discriminatory practice, or what motivates it, is irrelevant to the ultimate conclusion of whether the practice is in fact discriminatory; (2) the employee’s sex need not be the sole or primary cause of the employer’s adverse action in order for the action to be discriminatory; and (3) an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. That is, an employer that discharges an employee because they are LGBTQ violates the law even if the employer subjects all LGBTQ employees (male, female, or non-binary) to the same discrimination.

As the issue did not present itself in Bostock, Justice Gorsuch did not address whether employers could invoke the Religious Freedom Restoration Act (“RFRA”), which prohibits government from “substantially burdening a person’s exercise of religion,” to claim a religious exception to Bostock. Gorsuch explained: “[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases.” Therefore, we can expect that some employers will seek to invoke the RFRA to avoid complying with federal law in this respect. Further, last week, the Supreme Court, in Our Lady of Guadalupe School v. Morrissey-Berru authored by Justice Alito, broadened the ministerial exception to employment discrimination, which permits churches and other religious institutions to discriminate against “ministers” as that term is defined in the law. There, the Court held that two Catholic elementary school teachers could not sue for discrimination because they were “ministers” in that they played a key role in teaching religion to students. Our Lady of Guadalupe did not involve claims of discrimination based on LGBTQ status. It is not yet clear the extent to which that decision will undermine the scope of Bostock.

Also likely to come before the Court are questions of how Bostock’s interpretation of “sex” applies or does not apply in other areas where discrimination based on LGBTQ status still remains legal in some states, such as education, housing, and health care. Finally, employee advocates will certainly push state courts to interpret state laws that prohibit discrimination based on sex consistently with Bostock, which would allow employees to pursue claims of discrimination under state law, as well. Therefore, we will be watching to see how individual states respond to Bostock.

As a final note, while Mr. Bostock is alive today to celebrate this momentous occasion for employment rights’ advocates and the LGBTQ community, both Mr. Zarda and Ms. Stephens passed away during the course of the many years of litigation that preceded the Supreme Court’s June 2020 decision. Fortunately, their estates continued to press their causes, in hopes of benefitting others who faced unfair and unlawful discrimination in the workplace. Now, employees who live in one of the 25 states in the United States that offer no explicit protections against workplace discrimination based on LGBTQ status can file administrative charges with the Equal Employment Opportunity Commission and ultimately, lawsuits in federal court when faced with workplace discrimination. Although Mr. Zarda and Ms. Stephens are not alive today to celebrate this important victory, their legacies are carried on in this significant decision.

If you would like to read the Court’s opinion, it is available on the Supreme Court’s website.