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  • November 24, 2020

    Defining 'Sex' in Title VII: The Bostock Decision and LGBTQ Rights

    The U.S. Supreme Court recently ruled that federal law prohibits employers from discriminating against gay, lesbian, and transgender employees in workplaces. Hayley Archer discusses the case, its potential implications, and what it means for employees in Wisconsin.

    Hayley Archer

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    In a landmark decision that is a major victory for the LGBTQ community, the U.S. Supreme Court ruled that federal law prohibits employers from discriminating against gay, lesbian, and transgender employees in workplaces.

    “An employer who fires an individual merely for being gay or transgender violates Title VII because homosexuality and transgender status are inextricably bound up with sex.”1

    On June 15, 2020, in a 6-3 decision in Bostock v. Clayton County, the Court ruled that the prohibition on discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 (Title VII) applies to discrimination on the basis of sexual orientation and gender identity.

    In October 2019, the Supreme Court heard three cases from three federal Circuit Courts on the issue. The decision, announced June 15, 2020, is a consolidation of the cases – Bostock, EEOC v. R.G. & G.R. Harris Funeral Homes Inc., and Zarda v. Altitude Express, Inc.2

    The Decision: Justice Gorsuch’s Majority Opinion

    Justice Neil Gorsuch wrote opinion for the majority, which included Justices Roberts, Ginsberg, Breyer, Sotomayor, and Kagan.

    Hayley Archer Hayley Archer, U.W. 2018, is an associate attorney with Hawks Quindel, S.C., in Madison, where she practices in employment law, labor law, and Social Security disability law.

    Justice Gorsuch’s majority opinion settles the long-standing dispute: does Title VII protect LGBTQ employees under the prohibition of discrimination “based on sex”? According to Justice Gorsuch:

    The answer 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.3

    The answer 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.

    Sex, he explains, plays a “necessary and undisguisable role in the decision,” which is, of course, “exactly what Title VII forbids.”

    Justice Gorsuch acknowledges that the 1964 Congress that adopted the Civil Rights Act likely did not anticipate its reach would envelope gay and transgender people. However, the members of that Congress also “[l]ikely … weren’t thinking about many of the Act’s consequences that have become apparent over the years,” including protections that most of us take for granted today, such as the ban on sexual harassment or prohibition against discrimination of motherhood. But, Justice Gorsuch explains, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” He proves himself a genuine textualist, adding, “only the written word is law.”

    Next, Justice Gorsuch iterates the facts of the cases (although, he notes, “[f]ew facts are needed to appreciate the legal question we face.”). In each case, an employer fired an employee after learning that the employee is homosexual or transgender, allegedly for no other reason.

    Each employee brought a claim under Title VII, alleging discrimination on the basis of sex. Two of the cases (Zarda, in the Second Circuit, and Stephens in the Sixth Circuit) found that Title VII prohibits employers from firing employees because of homosexuality or transgender status.

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    One case (Bostock, in the Eleventh Circuit) dismissed the suit as a matter of law – that is, held that Title VII’s prohibition of sex-based discrimination doesn’t extend to homosexuality or transgender status. Thus, in a split between federal courts on the interpretation of federal law, the Supreme Court agreed to settle the matter.

    Justice Gorsuch: What ‘Sex’ in Title VII Means for Today’s Workplace

    Justice Gorsuch explains that the Court typically interprets statutes by examining the “ordinary public meaning” of the key terms. That is, how the public would have understood the key term when it was passed. Accordingly, Justice Gorsuch examines Title VII’s key terms as they were used in 1964 (appealing to dictionaries of the time).

    Title VII prohibits discrimination by employers on a variety of bases, including “sex.”

    “Sex,” in 1964, referred to “status as either male or female [as] determined by reproductive biology.” “Because of” in 1964 (as it does today) meant “by reason of” or “on account of.”4

    How can we know when discrimination occurs “because of” sex?

    Justice Gorsuch describes the legal test: whether the particular outcome would not have happened but for the purported cause. Put another way, “change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”

    To be sure, there may be more than one cause of a particular outcome (e.g., a car accident occurred because Driver A ran a red light and Driver B failed to signal a turn at the intersection). In Title VII cases, employers can’t avoid liability for sex discrimination by claiming that another factor contributed to its decision to fire someone. If the employee’s sex is one factor, the act is unlawful discrimination.

    “Discriminate” meant “[t]o make a difference in treatment or favor (of one as compared to others).” Specifically, Title VII prohibits discrimination against individuals based on sex, rather than discrimination against groups based on sex.5

    To explain, Justice Gorsuch writes, [s]uppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall.”6

    So, it is unlawful when an employer intentionally relies in part on an individual employee’s sex when deciding to fire the employee. In other words, “if changing the employee’s sex would have yielded a different choice by the employer … a statutory violation has occurred.”

    The reasoning is that a person’s sex is not relevant to employment decisions. Then Justice Gorsuch articulates the core of the opinion in two sentences:

    An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against the individual based on sex. (emphasis added)

    Justice Gorsuch illustrates that simple message by application. One example is an employer with two employees, both of whom are attracted to men. The employees are identical in all respects, except that one is a man and one is a woman. If the employer fires the man for no reason other than his attraction to men, the employer penalizes him for a trait tolerated in his female co-worker.

    Another example is an employer who fires a transgender employee who was identified as a male at birth but who now identifies as a female. If the employer retains an identical employee who was identified as a female at birth, the employer penalizes the employee identified as male at birth for traits tolerated in the employee identified as female at birth.

    ‘[H]omosexuality and Transgender Status are Inextricably Bound up with Sex’

    Even when an employer intends to discriminate based solely on sexual orientation or transgender status (and not on sex), the employer cannot avoid discriminating based on sex.

    Gorsuch illustrates this principle with the example of an employer whose policy is to fire homosexual employees. At a holiday office party, a model employee arrives and introduces a manager to Susan, the employee’s wife. Will the employee be fired? That depends on the sex of the individual employee. Accordingly, the employer could not discriminate based on sexual orientation without discriminating based on sex.

    Employers Cannot Hide Behind Blanket Policies that Target All Homosexual and/or Transgender Employees Regardless of Sex

    As explained above, the statute applies to individual employees. Each violation of each individual based on that individual’s sex is an independent violation: “an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability.”7

    Next, having articulated and illustrated the rule, Gorsuch assesses three leading Title VII cases to confirm that his interpretation of the statue is sound.

    From these, Justice Gorsuch pulls three lessons from the above decisions:

    • It is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.

    • The plaintiff’s sex need not be the sole or primary cause of the employer’s action.

    • An employer cannot escape liability by demonstrating that it treats males and females comparably as groups.8

    Justice Gorsuch Addresses the Employers’ Arguments

    Next, Justice Gorsuch directs our attention to the employers’ arguments, which he says proceeds in two stages.

    First, the employers list reasons why discrimination based on homosexuality or transgender status is not “because of sex.”

    Justice Gorsuch responds that Title VII asks:

    • whether sex was a but-for cause (and not the sole cause);

    • that there is no way to define gay or transgender status without considering sex; and

    • that there is “no such thing as a canon of ‘donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.”9

    Second, the employers contend that Title VII was never intended to protect LGBTQ people.

    Justice Gorsuch responds that Title VII is a “major piece of federal civil rights legislation,” and it is “written in starkly broad terms.” In fact, “many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’ at the time of the law’s adoption.” The Court shouldn’t ignore the plain, broad language of a law and seek some meaning lying beyond it.10

    Third, the employers argue that there will be an untold number of undesirable policy consequences that will follow the decision, to which Justice Gorsuch replies, “the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.”11

    He adds, “[t]he only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”

    The majority answers: Yes.

    Dissents: Justices Alito and Kavanaugh Invoke the Theories of Justice Scalia

    Justice Samuel Alito wrote a dissent with which Justice Thomas concurred. He labeled the majority opinion a “brazen abuse of our authority,” given Congress’s failure to amend Title VII to protect LGBTQ workers. He accused Justice Gorsuch of invoking the textualism advocated by the late Justice Scalia to disguise his mission to “update” old statutes to better reflect the current values of society.12

    Justice Alito insisted that the word “sex” as Congress understood it in 1964 could not have included sexual orientation and gender identity, because homosexual conduct was considered to be a mental disorder and was regarded as morally culpable and worthy of punishment.13

    Justice Alito projected the impact of the majority opinion would reach into more than 100 federal statutes that prohibit discrimination on the basis of sex, and he warned about the vexing problems the decision will cause in the use of bathrooms, locker rooms, and for the hiring process by religious organizations.14

    Justice Kavanaugh’s Criticizes the Majority Opinion but Acknowledges ‘Victory’

    Justice Brett Kavanaugh wrote his own dissent, echoing some of Alito’s themes, including the importance of originalism and the dangers of judicial activism.

    However, at the end of his opinion he congratulated the “gay and lesbian Americans” on the “important victory achieved today.”15 Apparently, his salutation omits transgender people.

    What Are the Potential Consequences of Bostock?

    Justice Gorsuch narrowed the Court’s holding to discriminatory terminations of employment.

    What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. … But none of these other laws are before us. ... Under Title VII … we do not purport to address bathrooms, locker rooms, or anything else of the kind.16 (emphasis added)

    Still, the clarification in Title VII law gives some guidance about its practical, related consequences.

    Can an Employer Require a Gendered Dress Code?

    The Supreme Court declined to take up the question of gendered dress code enforceability directly in Bostock.

    But the rationale underlying the opinion is that sex cannot be separated from sexual or gender orientation. Justice Gorsuch writes:

    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.17 (emphasis added)

    Plaintiff Aimee Stephens was fired from her job at R.G. & G.R. Harris Funeral Home in 2013 after she came out as transgender and told her employer she would begin adhering to the women’s dress code at work. She sued under Title VII for sex-based discrimination. Her employer argued that he required everyone to dress accordingly to the gender they were assigned at birth. The Court sided with Stephens.18

    The Court may have declined to decide on dress codes in Bostock, but it addressed a very similar (some might argue identical) question in the 1970 case Price Waterhouse v. Hopkins.19 In that case, the plaintiff, a cisgender woman named Ann Hopkins, was denied partnership at her firm because her employer didn’t believe she was sufficiently feminine. Hopkins sued under Title VII sex discrimination and won. The Supreme Court found that Title VII prohibits discrimination based on gender stereotyping.

    Now we can apply that rule to cisgender men and women, transgender men and women, and non-binary or gender non-confirming people.

    Historically, guidance from the Equal Employment Opportunity Commission (EEOC) and federal courts on the question has been that sex-specific dress codes are permissible as long as they are not arbitrarily enforced or impose a higher burden on one sex. In recent years, many states and municipalities have issued their own guidance on the issue, often framing gender expression as a protected characteristic.20

    Who Decides Which Restroom an Employee Uses?

    Similarly to the issue of dress codes, the Court declined to address the issue of sex- and gender-segregated restrooms and locker rooms.

    However, the issue is critical for transgender and non-gender-conforming employees. Federal agencies and analogous case law provide some guidance.

    First, the EEOC’s guidance clarifies that employers must allow employees to use the bathrooms and locker rooms consistent with the individual employee’s gender identity, whether or not that employee has undergone gender-confirming medical treatment.21

    Second, Occupational Safety and Health Administration (OSHA) issued guidance explaining that safe access to restrooms was, in fact, within OSHA’s purview, and employers should allow employees to access whatever restroom is consistent with that employee’s gender identity.22

    Finally, although the question of sex-segregated restrooms is yet unsettled in the workplace, in the 2017 case Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., the Seventh Circuit held that a school discriminated against a transgender student by requiring him to choose between using a girls’ restroom or a single-occupancy restroom far away from other students. The court found that transgender students are protected from discrimination under Title IX of the Education Amendments of 1972 (Title IX) and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.23

    Of course, the issue was specific to schools, not the workplace. But even so, courts often analogize Title VII and Title IX claims, so it is likely that courts in the Seventh Circuit would look to Whitaker for guidance.

    Can the Religious Freedom Restoration Act Supersede Title VII’s Protections?

    When Justice Gorsuch noted that the Religious Freedom Restoration Act (RFRA) “might supersede” Title VII in “appropriate cases,”24 he foreshadowed a balancing of LGBTQ rights and religious interests in future cases.

    The RFRA is a 1993 law that is intended to prevent other federal laws from substantially burdening a person's free exercise of religion. Put another way, under the RFRA, religious people, business, and/or corporations may violate applicable laws by illustrating conflicts with their religious beliefs.

    In the infamous Burwell v Hobby Lobby Stores, Inc. (2014),25 the Supreme Court not only determined that corporations are persons for the purposed of the RFRA, but also lowered the burden for religious persons (or corporations) to establish that an existing law impedes their religious freedom.

    In the Supreme Court’s 2018 decision Masterpiece Cakeshop v. Colorado Civil Rights Commission,26 Justice Gorsuch suggested that religious conservatives should enjoy sweeping exemptions from laws prohibiting discrimination on the basis of sexual orientation and gender identity. (This author will not opine whether his contradictory conclusion in Bostock was a result of his commitment to textualism or a change of heart toward the LGBTQ community).

    On Nov. 4, 2020, the Supreme Court heard oral argument in Fulton v. City of Philadelphia27 to determine whether faith-based child welfare agencies can legally refuse to work with same-sex couples. Depending on Fulton’s outcome, it could potentially create a broad exception in Title VII protections.

    Conclusion: A Major Step

    As the Supreme Court begins its next term with the addition of Justice Amy Coney Barret, who will be the sixth conservative Justice on the Court, many LGBTQ people and allies are worried about the shifting terrain of legal protections. The concern is well-founded, especially in light of Justices Alito and Thomas’s recent statement28 urging the Court to reconsider its 2015 decision to legalize same-sex marriage in Obergefell v. Hodges29 on the basis of religious rights.

    But recall that Bostock was penned by a conservative Justice applying a textualist approach – the same juridical principle used by his judicial icon, the late Antonin Scalia. Also, Chief Justice John Roberts (who dissented in Obergefell) did not sign onto the Alito-Thomas statement, and neither did conservative Justices Gorsuch and Brett Kavanaugh. That is to say, although the fear may be well-founded, the harm is not certain.

    For now, because of Bostock, employees are legally protected from sexual orientation and gender identity discrimination under federal law. The decision is a major step in protecting millions of people in the workplace.

    Kathy Charlton, shareholder with Hawks Quindel, S.C., in Milwaukee, is a contributing author.

    This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.


    1 Bostock v. Clayton Cty., 590 U.S. __, 140 S. Ct. 1731 (2020).

    2 Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 2018) (per curiam); EEOC v. R.G. & G.R. Harris Funeral Homes Inc., 884 F.3d 560 (6th Cir. 2018); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc).

    3 Bostock, 140 S. Ct. 1737.

    4 Id. at 1739.

    5 Id. at 1740.

    6 Id. at 1741.

    7 Id. at 1742-43.

    8 Id. at 1744.

    9 Id. at 1744-47.

    10 Id. at 1752-53.

    11 Id. at 1753.

    12 Id. at 1755-56 (Alito, J., dissenting).

    13 Id. at 1769 (Alito, J., dissenting).

    14 Id. at 1778 (Alito, J., dissenting).

    15 Id. at 1837 (Kavanaugh, J., dissenting).

    16 Id. at 1753.

    17 Id. at 1737.

    18 EEOC v. R.G., 884 F.3d 560 (6th Cir. 2018).

    19 Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989).

    20 Cities and Counties with Non-Discrimination Ordinances that include Gender Identity, The Human Rights Campaign.

    21What You Should Know: The EEOC and Protections for LGBT Workers, U.S. Equal Employment Opportunity Commission.

    22 Best Practices: A Guide to Restroom Access for Transgender Workers, Department of Labor Occupational Safety and Health Administration (OSHA).

    23 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017).

    24 Bostock, 140 S. Ct. at 1754.

    25 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 134 S. Ct. 2751 (2014).

    26 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719 (2018).

    27 Fulton v. City of Phila., __ U.S. __, 140 S. Ct. 1104 (2020).

    28 Davis v. Ermold, 592 U.S. __ (2020)(certiorari denied)(Thomas, J., statement).

    29 Obergefell v. Hodges, 576 U.S. 644 (2015).​​


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