Title VII of the Civil Rights Act of 1964, in part, prohibits discrimination in the workplace on the basis of sex. While one can question how much legislators in 1964 were thinking about lesbian, bisexual, gay, and transgender workers when it was passed, the Supreme Court's 2020 decision in Bostock v. Clayton County nonetheless found that the plain language of the statute prohibited discrimination against LGBTQ workers.
That Title VII now prohibits discrimination based on LGBTQ status is the result of three consolidated cases: Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC. In all three cases, employees were fired because they were gay or transgender. All lived in states and municipalities in which there were no explicit prohibitions against LGBTQ discrimination in the workplace.
Facts of the Case
Gerald Bostock worked for Clayton County, Georgia, for 10 years. After joining a gay softball league, Clayton County fired him for “conduct unbecoming of its employees." Bostock sued, alleging Title VII protected workers on the basis of sexual orientation. Clayton County did not argue that sexual orientation played no role in his firing; instead, it argued that Title VII does not prohibit such discrimination.
A 2017 decision in the Eleventh Circuit, which is the federal appeals court for Georgia, held that Title VII did not protect LGBTQ workers. Because of this binding precedent, absent a full review by the Eleventh Circuit or further instruction from the Supreme Court, the Eleventh Circuit determined that Bostock did not have a claim in Georgia. The Supreme Court took up the case.
At the time the Supreme Court decided Bostock, a majority of states had already passed legislation prohibiting workplace discrimination for LGBTQ employees. So, too, had numerous municipalities. Twenty-one states did not have specific legislation, however.
In the past, Congress has attempted to pass legislation amending Title VII to include sexual orientation. In 2007, the House of Representatives passed legislation amending Title VII, and in 2013 the Senate did so, as well. The most recent attempt was 2019. However, in every case, a Democratic-controlled branch of Congress could not pass the law through the other, Republican-controlled branch.
The Arguments In Bostock v. Clayton County
In a 6-3 decision penned by Justice Neal Gorsuch, the Supreme Court held that Title VII protects gay and transgender workers from workplace discrimination. It did so on a plain language reading of the statute, a judicial philosophy known as textualism. Justice Gorsuch was joined by one other Republican-appointed justice, John Roberts, and the four Democratic-appointed justices. Justices Alito, Thomas, and Kavanaugh dissented.
Justice Gorsuch's Majority Opinion
Justice Gorsuch began by analyzing the definitions of the words in the relevant statute. Section 703(a) states that it shall be unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." The word at issue, in this case, is “sex," which Justice Gorsuch defined as the biological gender of a person at birth.
Still, even with this definition, a textualist reading of the statute led Justice Gorsuch to conclude that Title VII prohibited discrimination against homosexuality and transgender status by its plain meaning. There were three reasons for this:
- It is impossible to consider someone's sexual orientation without first considering their sex
- Sex must only be a “but for" cause of a person's firing. It does not need to be the only, or even primary, reason; and
- Title VII is about protecting individuals against discrimination, not groups
For the first point, Justice Gorsuch gave an example of an employer with a policy of firing anyone who is homosexual. Two identical employees show up with a spouse, named Karen. Whether either of them is fired depends entirely on their sex.
As for the second point, Justice Gorsuch argued that while employers can argue sex is not the driving factor in discriminating against LGBTQ workers, it does not need to be under Title VII. Under the statute, an employee needs to only show they would not have been fired “but for" their sex. Anyone who is fired because of their sex, even if there are other reasons, has still been fired in violation of Title VII.
Clayton County and other employers argued that they treated men and women equally, since LGBTQ employees of either sex would be fired for their sexual orientation. Similarly, transgender employees would be fired regardless of the gender they transitioned from or into. However, Justice Gorsuch noted that Title VII protects individuals against discrimination, not groups. It is true that men and women would generally be equal under a policy of LGBTQ discrimination. For individual employees, however, that doesn't matter. They are still being fired, at least in part, because of their sex. This is what the statutory text of Title VII prohibits.
Justice Gorsuch, sticking true to his judicial philosophy of textualism, wrote that “[j]udges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations." Put simply, it doesn't matter what the original intent of Title VII was, or whether legislators in 1964 would agree with this application of the law in 2020. What matters is what the statute's plain language reads, and in the majority's opinion, it clearly reads that Title VII offers LGBTQ workers protection from discrimination.
Justice Alito's Dissent
Justice Alito, joined by Justice Thomas, wrote a strongly worded dissent that attempted to counter both the decision that the majority reached and the method used to reach that decision.
According to Justice Alito, a textualist reading of Title VII does not mean discrimination on the basis of sexual orientation or transgender status is prohibited. Instead, he would have based the ruling on the “ordinary meaning" of the word sex as used by legislators in 1964. Justice Alito noted that “when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment." And that meaning, Justice Alito felt, clearly did not include LGBTQ workers. Justice Alito included numerous examples in his dissent on the ordinary meaning of the word “sex" in 1964.
Nor was Justice Alito persuaded by Justice Gorsuch's examples. Taking the example of the worker who brings their spouse, “Karen," to work, Justice Alito argued that it wasn't sex that was playing a role, it was sexual orientation – specifically. And, absent a specific protection from Congress in Title VII, an employer can treat employees differently based on homosexuality.
However, this brings up another troubling issue: If an employer can prevent homosexual and non-binary relationships, can an employer also discriminate against employees in interracial relationships? After all, in such an example an employer would be treating all races equally – by equally condemning interracial relationships among all races. Justice Alito attempted to distinguish between an employer who had a policy of terminating anyone who had an interracial marriage and discriminating against same-sex and non-binary relationships. “History tells us", Justice Alito wrote, that a prohibition against interracial marriage “is a core form of race discrimination." Discriminating on the basis of non-traditional marriages, on the other hand, “is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called 'homophobic' or 'transphobic,' but not sexist."
Justice Alito likened the majority opinion to a pirate ship: “It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update" old statutes so that they better reflect the current values of society."
Justice Alito also worried about the decision's impact on issues outside of the direct scope of the case, such as bathroom policies for schools and gyms. The majority, however, explicitly stated this ruling did not decide those issues in advance of any potential litigation.
Justice Kavanaugh's Dissent
Justice Kavanaugh dissented separately to highlight that it is Congress' duty, not the Supreme Court's, to protect LGBTQ workers. Justice Kavanaugh noted that Title VII did not prohibit age or disability discrimination but added those protections later through legislation. Similarly, it was not the role of the Supreme Court to amend Title VII to include sexual orientation simply because Congress lacked the fortitude to do so on its own.
Justice Kavanaugh conceded that “as a literal matter" making a distinction about sexual orientation also required a distinction about that person's sex. However, Justice Kavanaugh said that alone wasn't enough to read Title VII as the majority did. Instead, the majority also had to prove that reading the statute literally, rather than per its ordinary meaning, was the correct method of interpretation. And that, Justice Kavanaugh reasoned, the majority did not do.
Instead, Justice Kavanaugh would have used the ordinary meaning of “sex" as used in 1964, which he agreed with Justices Alito and Thomas did not include sexual orientation, a little-understood topic in 1964.
As a result of the decision, Title VII does not need to be amended to prohibit employment discrimination for LGBTQ workers nationwide. All employers subject to Title VII can no longer discriminate based on a worker's LGBTQ status, regardless of the state or municipality in which they are based.