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In a 6-3 decision issued this morning, penned by Justice Neil Gorsuch, the United States Supreme Court has settled with finality the question of whether gay and transgender workers are protected from discrimination in employment by Title VII. According to the Court, “The answer is clear”—and the answer is yes. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The opinion focuses strongly on the text of Title VII—“When the express terms of a statute give us one answer and extra textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

The three cases on appeal to the Supreme Court were Bostock v. Clayton County (11th Circuit), Altitude Express, Inc. v. Zarda (2nd Circuit), and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission (6th Circuit). In the first, Gerald Bostock worked for a decade for Clayton County, Georgia as a child welfare advocate. The county had won awards under Bostock’s leadership. Yet, after Mr. Bostock began participating in a gay recreational softball league, influential members of the community allegedly made disparaging comments about his sexual orientation and participation in the league, and he was fired for conduct “unbecoming” to a county employee.

In Altitude Express, Don Zarda, a gay man, worked as a tandem skydiving instructor for the company. He would sometimes tell female clients about his sexual orientation to address any concern they might have about being strapped to him. Days after Zarda mentioned to his employer that he was gay, despite several seasons with the company, he was fired. He claimed the reason for his termination was because of his reference to his sexual orientation and because he did not conform to male gender stereotypes.

Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, she presented as a male, but two years into her employment, she was diagnosed with gender dysphoria after seeking treatment for despair and loneliness, and it was recommended that she begin living as a woman. Several years later, after six years with the company, she informed her employer that after an upcoming vacation, she would return and “live and work full-time as a woman.” She was fired before leaving on vacation with the message that “this is not going to work out.”

The three cases each proceeded through the trial and appellate courts with mixed conclusions about whether Title VII’s protections against discrimination based on sex extend to the plaintiffs’ situations, so the Supreme Court accepted certiorari in 2019. The employers in each case argued, among other things, that the term “sex” as used in 1964 when Title VII was passed referred to “status as either male or female [as] determined by reproductive biology.” However, the Supreme Court found that the question was not just about what “sex” meant, but what Title VII says about it, and the statute actually prohibits employers from taking certain actions “because of” sex, which means “by reason of” or “on account of.” This language requires the use of but-for causation, which is the standard the Court has applied repeatedly over the years in different contexts. This standard requires courts to consider whether a particular outcome would not have happened “but for” the purported cause. Further, in the case of Title VII, the Court has previously determined that the but-for causation standard does not mean a defendant can avoid liability just by citing some other factor that contributed to the challenged employment decision. Instead, so long as the plaintiff’s sex was one but-for cause of the decision, that is enough to trigger the law.

In its decision today, the Supreme Court addressed also what it means to “discriminate” under Title VII’s terminology, both in 1964 and today, and found that the word has consistently meant “to treat an individual worse than others who are similarly situated.” Further, the term “disparate treatment” that has developed in employment law requires the difference in treatment to be intentional. And the statute itself requires an individual assessment rather than a categorical one when it says that employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. sec. 2000e-2(a)(1) (emphasis in the opinion).

In response to the argument that an employer who discriminates based on homosexuality or transgender status does not intentionally discriminate based on sex, the Court opines that the employer in that situation is “necessarily and intentionally applying sex-based rules.” Further, for the employer who does not perceive themselves as motivated by a desire to discriminate based on sex, the Court states that “nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination.” In today’s opinion, the Court makes comparisons to many of the gender-discrimination cases it has decided in its history, and finds that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.”

Ultimately, the Court finds that text of Title VII is clear, and even if few in 1964 would have expected today’s result, that does not mean that the plain language of the statute should be ignored. In reaching its conclusion, the Court rejected what it referred to as “naked policy appeals” cited by the employers as the dissenting justices. The majority concludes its opinion with the following: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Outside of the context of religious organizations and smaller employers (those with less than 15 or more employees), this opinion effectively ends the national debate over whether LGBTQ+ protections exists in the employment context. The issue of the scope of the ministerial exemption for religious institutions is pending on appeal with the Supreme Court and is expected to be decided this summer as well. Employers who need assistance implementing this decision in their workplace can contact a member of Thompson Coe’s Labor & Employment Section for advice.

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Stephanie S. Rojo

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