Bostock v. Clayton County: Defining “Sex” Under Title VII

On June 15, 2020, the Supreme Court of the United States handed down its decision in the case of Bostock v. Clayton County, Georgia.¹ The issue? Whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sexual orientation or gender identity. The Court decided that “an employer who fires an individual merely for being gay or transgender violates Title VII.”

The Consolidated Cases

This case consisted of three consolidated cases from across the country, all involving the same legal issue under Title VII. Each of the three cases involved employees allegedly terminated on the basis of being homosexual or transgendered. The first and leading case, Bostock v. Clayton County, involved a county employee in Georgia who was terminated for “unbecoming” conduct shortly after he began participating in a gay recreational softball league. The second case, Altitude Express, Inc. v. Zarda, involved a skydiving instructor in New York who was terminated after coming out as gay. The third case, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, involved an employee at a Michigan funeral home who was terminated after deciding to change gender identities.

Sex Discrimination under Title VII of the Civil Rights Act of 1964

The Civil Rights Act was passed in 1964 during the Civil Rights Movement, to address racial and sexual discrimination in employment and public accommodations and includes Title VII. Title VII contains employment provisions, and applies to employers in both the private and public sectors with 15 or more employees. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). This prohibition extends not only to simply hiring and firing, but also things like harassment and disparate treatment on the basis of protected status. The Equal Employment Opportunity Commission (EEOC) enforces Title VII.

The Decision

The case’s central issue involved interpreting Title VII’s phrase “because of . . . sex”. The defendant (employers) argued the reason they terminated the plaintiff (employees) was not “because of sex” but rather because of their sexual orientation or gender identity. The employers argued that Congress in 1964 did not intend for the term “sex” to include LGBT classes of employees, but rather only discrimination on the basis of one’s binary biological sex.

The employees argued that the Court did not need to adopt any new definition of “sex” to find that the reason that they were terminated was indeed “because of sex.” They conceded that the term “sex” in 1964 referred to the biological distinctions between male and female. However, they argued that since they would not have been terminated, but for their biological sex, that their termination was precisely within the ambit of discrimination “because of sex” under Title VII.

Justice Neil Gorsuch, writing for the six-justice majority, agreed with the employees’ argument regarding how “because of sex” should be construed:

Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.

Justice Gorsuch reached this conclusion not by adopting any new definition of “sex,” but rather by reasoning that the plain and original meaning of the word “sex” would be implicated when an employee is terminated for being sexually oriented towards persons of the same sex or for otherwise not conforming to traditional expectations associated with their sex.

Therefore, this decision means that Title VII’s prohibition against discrimination “because of sex” includes a prohibition against discrimination against employees on the basis of their sexual orientation or gender identity.

Implications for Employers

Many employers have complied with state and local laws that prohibit discrimination on the basis of sexual orientation or gender identity, and have done so for years. However, just because businesses have tailored their policies and practices to comply with state and local law does not guarantee that they also comply with the demands of Title VII. These employers may be impacted in how the administer their policies. All business should reassess their employment policies and practices to ensure that they comply with Title VII after Bostock v. Clayton County, Georgia.

Moreover, for employers in areas of the country where discrimination on the basis of sexual orientation or gender identity has heretofore been lawful, the Bostock decision means that whole new protected classes of employees will need to be considered. This will require a significant overhaul of employment policies for some employers.

One example of how Bostock may affect policy: Title VII prohibits employers from promoting or maintaining a “hostile work environment” – meaning an environment where employees are adversely treated on the basis of their race, sex, etc. This traditionally means that employers cannot lawfully tolerate employees subjecting other employees to offensive behavior such as racial slurs or sexual harassment. Following Bostock “sex” is legally understood to include sexual orientation and gender identity. Employers may be liable under a “hostile work environment” for offenses such as employees misgendering a co-worker, or declining to include an employee’s same-sex spouse in work-related social events.

Implications for Religious Organizations

What impact will this decision have on religious employers? The answer is somewhat complicated. There are constitutional exemptions for many religious organizations. For example, churches and religious organizations, when selecting ministers, have a constitutional exemption from employment discrimination laws (both state and federal) However, while pastors and clergy generally are “ministers,” it’s less clear whether this extends to other faith-based positions (such as teachers in religious schools). The ministerial exception does not extend to non-ministerial employees, such as janitors and administrative staff.

Title VII itself contains exemptions for religious organizations. For instance, general prohibitions about religious discrimination do not apply to “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” In other words, religious organizations can show preference towards their own religion when hiring for work connected to the organization’s activities. Also, Title VII specifically exempts religious schools and colleges from liability for religious discrimination when they hire only employees of their affiliated religion. However, successfully asserting these exemptions in a Bostock context would depend on court response to the idea that “making a decision based on a person’s belief about sexuality is different than making a decision based on sexuality itself.”. Another consideration lies in what the term “religious corporation” means. It’s unclear whether this category of exempt employers includes for-profit businesses like religious booksellers.

It is possible that the Religious Freedom Restoration Act (42 U. S. C. §2000bb) may apply to religious employers, or that the First Amendment to the U.S. Constitution may restrict how Bostock v. Clayton County, Georgia applies to religious organizations. The Court itself in the Bostock decision recognized the possibility that these legal protections for religious organizations “might supersede Title VII’s commands in appropriate cases.”

Nevertheless, religious organizations should carefully examine their policy, and consult with their counsel following the Bostock decision, which expands how discrimination on the basis of sex can be applied.

_________________________________________

¹ See the full opinion at https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf.

Featured Image by Rebecca Sidebotham.