Employer takeaways from the Supreme Court's Bostock decision on LGBTQ+ rights

On June 15, the U.S. Supreme Court ruled in Bostock v. Clayton County, 2020 DJDAR 5681, by a 6-3 margin that few had anticipated, that gay, lesbian and transgender employees are protected under Title VII's prohibition on workplace discrimination "because of sex." Both the reasoning and outcome of the ruling -- authored by Justice Neil Gorsuch, President Donald Trump's first Supreme Court appointee -- provide important guidance for how employers can and should think about LGBTQ+ issues in the workplace.

The Bostock Decision

Title VII of the Civil Rights Act of 1964 provides that it is an "unlawful employment practice" for an employer to discriminate against any individual "because of" a list of protected characteristics, including the individual's "sex." 42 U.S.C. Section 2000e-2(a)(1). As early as the 1960s, LGBTQ+ applicants and employees began filing administrative charges and civil cases contending that the "because of ... sex" language meant that employers could not discriminate on the basis of sexual orientation or gender identity. Courts long resisted this interpretation, and such claims were regularly disposed of by trial and appellate courts on motions to dismiss as a matter of law. For example, in 1979 the 9th U.S. Circuit Court of Appeals affirmed dismissal of Title VII claims brought by gay and lesbian employees who alleged they had been harassed, fired, or denied jobs because of their sexual orientation, holding that the "plain meaning" of Title VII indicated that "Congress had only the traditional notions of 'sex' in mind." DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 329-30 (9th Cir. 1979). In 2017, however, the 7th Circuit held that Title VII does prohibit sexual orientation discrimination, creating a circuit split. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). And in 2018, the 6th Circuit -- following a series of lower-court rulings that transgender employees had fought to secure -- held that Title VII prohibits gender identity discrimination as well. E.E.O.C. v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018).

Bostock reached the U.S. Supreme Court as a consolidation of three separate cases in which an individual alleged that he or she was fired for being gay or transgender. The employers argued that these claims failed because LGBTQ+ discrimination is not cognizable under Title VII. Justice Gorsuch, joined by Chief Justice John Roberts and the cpurt's four more liberal justices -- Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor -- concluded otherwise.

Writing for the court, Justice Gorsuch framed the question presented in simple terms: "whether an employer can fire someone simply for being homosexual or transgender." Bostock, 140 S. Ct. at 1737. The answer, the court held, "is clear": "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." Id. The opinion illustrated this point through a series of vivid examples -- for example, imagining a holiday party hosted by an employer who has stated it will fire anyone who is gay, and an employee who arrives with a female spouse. If the employee is a male, he will not be fired; if the employee is female, she will be. See id. at 1742. This, the majority explained, shows how sexual orientation discrimination "necessarily" involves treating individuals differently "because of ... sex." So too for gender identity discrimination, because Title VII prohibits terminating an employee who was identified as male at birth but now identifies as female where the employer would retain an otherwise identical employee who was identified as female at birth (that is, if she were a cisgender woman).

Rejecting arguments prior courts had found compelling, Justice Gorsuch relied on a textualist analysis: He concluded that it did not matter that "[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result," emphasizing that "[o]nly the written word is the law, and all persons are entitled to its benefit." Id. at 1737. The dissenting justices, however, accused the majority of subverting textualism by failing to apply the ordinary meaning of the term "sex," and instead reaching an ends-driven conclusion designed to "update" Title VII to "better reflect the current values of society." Id. at 1755-56 (Alito, J., dissenting). The dissents emphasized that sexual orientation discrimination is conceptually distinct from sex discrimination, and only the latter is mentioned in Title VII; whereas the majority viewed the two as inextricably linked and thus as both within Title VII's coverage.

Implications for Employers

The impact of Bostock will be far-reaching. More than half of states -- including seven of the 10 most populous -- lack state-level employment discrimination protections based on either sexual orientation or gender identity. In those states, prior to Bostock, applicants could be denied a job or employees demoted or fired simply for being LGBTQ+. Now, employees nationwide can seek redress for such discrimination under federal law (provided they work for a covered employer -- for example, a private business with 15 or more employees). Although the laws in many states (like California's Fair Employment and Housing Act) provide greater protections or additional remedies than Title VII -- and thus LGBTQ+ employees may continue to pursue claims primarily or exclusively under state law -- the extension of protections nationwide is historic and consequential. Many statutes other than Title VII contain similar "because of ... sex" language -- for example, laws governing education (Title IX), public accommodations, and healthcare -- so the Bostock holding may impact employers in those areas as well.

Employers are well-advised to take a look at an array of their employment practices in light of Bostock. First, employers should review non-discrimination policies and practices. Although multi-state employers often have uniform nationwide anti-discrimination policies, those who did not and single-state employers in jurisdictions that do not independently prohibit LGBTQ+ employment discrimination should revise policies and re-train as needed to reflect the newly recognized reach of Title VII. Employers may also want to consult with legal counsel about how to track and monitor outcomes for LGBTQ+ applicants and employees, in order to assess whether such individuals have different rates of hire, promotion, or pay, and if so to understand the reasons why. Finally, employers should review benefits offerings to ensure that LGBTQ+ employees have access to medical, family planning, and mental health care on non-discriminatory and inclusive terms.

While there are some concrete takeaways for employers after Bostock, questions remain. The majority opinion specifically declined to address how the Supreme Court's ruling might impact other workplace issues affecting transgender employees, including single-sex bathrooms or sex-specific dress codes. The majority opinion also emphasized that the court did not address or resolve how to square the court's interpretation of Title VII with constitutional protections of religious freedoms, an issue that will be of concern to faith-based employers. The court declined to rule on those questions, but they will almost certainly be the subject of future litigation. 