Sex Discrimination in the Workplace

Facts of the Cases

In the first case, Gerald Lynn Bostock v. Clayton County, Georgia, Gerald Bostock, who had worked as a child welfare advocate for Clayton County, Georgia for a decade and was recognized as a model employee, was fired by the county for conduct “unbecoming a county employee” (Bostock, p 1738) soon after joining a gay recreational softball league. In Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), Donald Zarda, a skydiver instructor with Altitude Express in New York, was fired within days of mentioning that he was gay to a female tandem skydiving client, after she complained about his homosexual status. In Equal Employment Opportunity Commission (EEOC) v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837 (E.D. Mich. 2016), Aimee Stephens, who was hired and had worked for years as a man, was fired after six years of employment at the company when she notified them she planned to transition to “live and work full-time as a woman” (Bostock, p 1738).

Though each employee brought suit under Title VII alleging “unlawful discrimination on the basis of sex” (Bostock, p 1738), each case had a different outcome in the lower courts. In Bostock, the U.S. District Court for the Northern District of Georgia dismissed the suit, siding with the county that Title VII does not apply to discrimination on the basis of sexual orientation, and the Eleventh Circuit Court of Appeals upheld the decision. In Zarda, the U.S. District Court for the Eastern District of New York granted summary judgment to the employer, but the Second Circuit Court of Appeals reversed the decision, holding that sex discrimination due to sexual orientation in fact does violate Title VII because such discrimination “is a subset of sex discrimination” (Zarda, p 116). Finally, in R.G. & G.R. Harris Funeral Homes Inc., the U.S. District Court for the Eastern District of Michigan ruled in favor of the employer, stating that Title VII did not extend to transgender people, but the Sixth Circuit Court of Appeals disagreed and reversed the decision. The cases were appealed and consolidated for consideration by the U.S. Supreme Court.

Ruling and Reasoning

In the majority opinion by Justice Gorsuch, the U.S. Supreme Court held that an employer who fires an individual on the basis of sex, namely for being either homosexual or transgender, violates Title VII.

Taking a textualist approach, the Court affirmed its role to interpret the statute in line with the “ordinary public meaning” of its terms and not what might have been the intentions of the legislators at the time of the law's creation. From the outset of the proceedings, there was dispute over the meaning of “sex.” According to the employers collectively, sex referred to the status of male and female as determined by reproductive biology; for the employees, however, sex went beyond anatomy. The Court later adopted the employers' definition but noted that the question before the Court was not about what sex meant, but what Title VII says about it.

The Court recalled its previous interpretation of Title VII and reaffirmed that “because of,” as written in the statute, meant “by reason of” or “on account of” (University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013)). This interpretation thus introduced a “but for” causation standard, i.e., an event would not have happened but for a particular cause. In these cases, as long as the employees' sex was a “but for” cause for the firing decision, Title VII was violated. The Court said that Congress deliberately did not state that discrimination must be “solely” or “primarily because of” sex, which would have narrowed the meaning to biological sex. On the contrary, Congress broadened the definition in 1991 by stating that plaintiffs needed only to show that a “protected trait like sex was a ‘motivating factor’” (Bostock, p 1739) in their termination to prevail in court.

Acting on their interpretation that termination of employment must show sex discrimination to violate Title VII, the employers asserted that, because the terminations were based upon the plaintiffs' homosexual or transgender status, groups comprising male and female genders, it did not constitute sex discrimination. The Court disagreed, noting that treatment of a homosexual or transgender individual worse than other similarly situated individuals does violate Title VII because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual on the basis of sex” (Bostock, p 1741). In addition, the Court noted that Congress intended Title VII to focus on the affected individual and not on societal subgroups.

The Court said that an employer cannot escape liability from sex-based discrimination simply by stating other factors besides sex as the reason for adverse action against an employee, or by demonstrating that they treat men and women similarly as a group. For example, in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the Court held that Title VII was violated when the company did not hire women with children but hired men with children. The Court concluded that the company discriminated on the basis of female sex and not motherhood as was claimed by the company, because fatherhood was not discriminated against. Likewise, in City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), where women were required to make larger pension fund contributions than men on the grounds that women generally lived longer than men, the Court concluded this was not discrimination on the basis of life expectancy as was claimed by the company, but in fact, discrimination on the basis of sex. In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the Court affirmed that Title VII's protection against workplace sex discrimination extended to situations where an employee was harassed by members of his own sex.

The Court was not impressed by the employers' argument that Congress intentionally left out sexual orientation and transgender status on the list of protected characteristics under Title VII. Noting that legislative history of the statute had no bearing on the current case, the Court emphasized that “many, maybe most, applications of Title VII's sex provision were ‘unanticipated’ at the time of the law's adoption” (Bostock, p 1752).

Dissent

In dissent, Justice Alito (supported by Justice Thomas, and in part by Justice Cavanaugh) stated that Title VII was never meant to include LGBTQ protections because, despite multiple opportunities to do so, Congress has been unwilling or unable to extend the statute to LGBTQ individuals. They argued that the case should have been referred back to Congress for amendment, and that interpretation of a statute should be context- and period-specific, because at the time of the statute's enactment in 1964, sex would not have included homosexuality and transgender status, an argument undercut by subsequent court filings by gay and transgender individuals soon after the statute's enactment. They worried that the Court's decision could impinge on religious convictions and could expand to other workplace topics, including sex-segregated bathrooms, locker rooms, and dress codes.