U.S Supreme Court Rules Title VII Sex Discrimination Includes Discrimination Based on Sexual Orientation and Transgender Status

On June 15, 2020, the United States Supreme Court (“Court”) decided three (3) cases filed under Title VII of the Civil Rights Act of 1964 (“Title VII”) alleging sex discrimination based on the employees’ sexual orientation or transgender status. Bostock v. Clayton Cty., Georgia, No. 17-1618, 2020 WL 3146686. The Court concluded that discrimination because an employee is homosexual or transgender is intrinsically based on the employee’s sex and therefore prohibited by the plain meaning of Title VII.

Facts

Gerald Bostock, a child welfare advocate for Clayton County, Georgia, won national awards and received positive performance reviews. However, the County fired him shortly after he joined a gay recreational softball league, and influential members of the public allegedly made negative comments about his sexual orientation. Mr. Bostock filed a lawsuit against his employer alleging that his termination violated Title VII’s prohibition against employment discrimination on the basis of sex. The Eleventh Circuit Court of Appeals dismissed Mr. Bostock’s Title VII claim holding that sex discrimination under Title VII did not extend to an employee’s sexual orientation.

Donald Zarda, a skydiving instructor in New York, worked for a company several years. He was fired a few days after mentioning he was gay to a customer. Mr. Zarda filed a lawsuit against his employer alleging that his termination violated Title VII’s prohibition against employment discrimination on the basis of sex. The Second Circuit Court of Appeals allowed Mr. Zarda’s lawsuit to proceed concluding that Title VII’s prohibition against employment discrimination on the basis of sex extended to an employee’s sexual orientation.

Aimee Stephens worked for a funeral home in Michigan. When hired, Ms. Stephens presented as a male. During her employment, doctors diagnosed Ms. Stephens with gender dysphoria and recommended she begin living as a woman. After six (6) years of employment, Ms. Stephens informed her employer that she intended to live and work full-time as a woman after she returned from a vacation. The funeral home fired her before the vacation. Ms. Stephens filed a lawsuit against her employer alleging that her termination violated Title VII’s prohibition against employment discrimination on the basis of sex. The Eighth Circuit Court of Appeals allowed Ms. Stephens to proceed concluding that Title VII’s prohibition against employment discrimination on the basis of sex extended to an employee’s transgender status.

The parties in all three cases appealed the respective Court of Appeals’ decisions to the U.S. Supreme Court. The Court heard oral argument on all three cases in October 2019.

The Court’s Decision

The Court held that Title VII broadly prohibits employers from taking adverse employment actions because of the employee’s sex and that such actions taken because an employee is homosexual or transgender necessarily violate the law. The Court explained that, in a Title VII case, the employee must establish that an employer would not have taken such action, but for the employee’s sex. The Court further explained that, even if the employer took an adverse employment action for more than one reason, if one of the reasons was the employee’s sex, the employer’s action violates Title VII.

Based on its broad interpretation of Title VII’s protections, the Court concluded that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that person based on their sex. To illustrate its point, the Court provided an example of two employees who are both attracted to men. The Court further explained that the employees are identical in all respects except that one is a man and one is a woman. If the employer terminates the man because he is attracted to men, the employer has taken action against the employee based on his sex because the employer tolerates the same characteristic in the female employee. Similarly, when an employer discriminates against a transgender male, it does so in part based on the employee’s sex at birth.

The Court further reasoned that it does not matter if the employer intends to discriminate against the employee based on the employee’s sexual orientation or transgender status rather than the employee’s sex. According to the Court, the employee’s sexual orientation or transgender status, and his or her sex are the reasons for the employer’s action. Title VII’s broad protections prohibit such actions when taken because of the employee’s sex. Thus, the Court concluded, discrimination based on sexual orientation or transgender status is inseparably tied to discrimination based on sex and as such, constitute a violation of Title VII.

Impact on Wisconsin School Districts

The Court’s decision should have minimal impact on Title VII employment claims in Wisconsin. The Seventh Circuit Court of Appeals, which includes Wisconsin, previously held that sex discrimination under Title VII included discrimination based on sexual orientation. Hively v. Ivy Tech Community College of Ind., 853 F.3d 339 (7th Cir. 2017). To reach its conclusion regarding sexual orientation, the Seventh Circuit applied the same analysis as the Supreme Court adopted in Bostock regarding sexual orientation and transgender status. Moreover, the Wisconsin Fair Employment Act explicitly prohibits employment discrimination on the basis of sexual orientation, but has not been applied to a claim for discrimination on the basis of transgender status.

It is less clear how the Court’s decision may impact sex discrimination claims under other federal discrimination statutes, including Title IX of the Education Amendments Act of 1972 (Title IX). The Court declined to address the dissenting opinion’s criticism that its holding would greatly expand sex discrimination coverage under other federal discrimination statutes like Title IX. The Court stated that its holding was limited to the statutory text of Title VII and that the Court would address the validity of sex discrimination claims on the basis of sexual orientation and transgender status under other federal discrimination statutes when and if such cases come before the Court.

Just one month ago, the U.S. Department of Education published new Title IX regulations on sex discrimination in educational programs and activities. The Department’s commentary on the new rule reiterated its previous position that Title IX does not prohibit discrimination based on sexual orientation or transgender status. The Department further stated, however, that Title IX protections apply regardless of whether the accuser and the victim are the same or different sexes.

The Court’s decision in Bostock is expected to reignite legal action to resolve whether Title IX prohibits discrimination based on sexual orientation and/or transgender status. Despite the Department’s current position, school districts should consider whether to include complaints based on sexual orientation and/or transgender status in its revised Title IX sexual harassment complaint and investigation policies and procedures.