On June 15, 2020, the U.S. Supreme Court issued Bostock v. Clayton County, Georgia, a landmark opinion expanding federal workplace protections to gay and transgender employees.1 Although many states, including Wisconsin, already have specific antidiscrimination laws in place that protect gay or transgender workers, Bostock ensures protection nationwide and gives Wisconsin employees an alternative measure for enforcing their rights. The decision comes amid recent actions by Pres. Donald Trump’s administration to limit LGBTQ rights in other arenas, and it is being heralded as “the biggest moment for LGBTQ rights in the United States since the Supreme Court legalized same-sex marriage” in 2015.2
In 2013, Gerald Bostock was fired from his job as a child welfare advocate for Clayton County, Georgia.3 About 10 years into his time working for the county, Bostock had joined the Hotlanta Softball League, a recreational league for gay individuals.4 After he joined the league, influential community members openly criticized Bostock and made disparaging comments about his sexual orientation and his participation in the league. Shortly thereafter, the county terminated Bostock, claiming that he had engaged in “conduct unbecoming of a county employee.”5
Brianna M. Covington, Marquette 2014, practices with Alan C. Olson & Associates S.C., New Berlin. She represents employees in all matters related to their employment, including discrimination claims, leave and benefit disputes, and short- and long-term disability claims. She also assists individuals in obtaining Social Security disability benefits.
Believing that he was terminated because he is gay, Bostock brought suit against the county. Specifically, Bostock alleged that the county’s actions constituted unlawful discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Bostock pursued his case through the federal court system, from the U.S. District Court for the Northern District of Georgia, to the U.S. Court of Appeals for the 11th Circuit, and ultimately to the U.S. Supreme Court.
In considering Bostock’s case, the Supreme Court also took up two other cases, which arose in the Second and Sixth Circuits. In both cases, long-time employees were terminated shortly after their employers learned that they were gay or transgender, as Bostock had been.6
Donald Zarda, a skydiving instructor at Altitude Express in New York, was fired after he disclosed that he was gay.7 The third plaintiff, Aimee Stephens, worked at R.G. & G.R. Harris Funeral Homes Inc. in Michigan. When she started her job, she presented as male. After six years, Stephens notified her employer that she was transgender and planned to live and work as a woman. Her employer fired her, stating “this is not going to work out.”8 Like Bostock, Zarda and Stephens filed lawsuits against their employers, claiming sex discrimination under Title VII.
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.”9 Although Bostock’s, Zarda’s, and Stephens’ employers all conceded, for purposes of the Supreme Court’s review, that they had terminated the plaintiffs because they were gay or transgender, they argued that their actions in doing so did not qualify as discrimination on the basis of sex.10 Accordingly, the employers alleged, their actions did not constitute unlawful discrimination under Title VII.
In Bostock’s case, the 11th Circuit held that Title VII does not prohibit discrimination on the basis of sexual orientation, and the case was dismissed as a matter of law.11 However, in Zarda’s and Stephens’ cases, the Second Circuit and the Sixth Circuit, respectively, held that Title VII prohibits employers from discriminating on the basis of sexual orientation or transgender status.12 Unfortunately, both Zarda and Stephens passed away during the litigation, but their estates continued to pursue their cases.13
Notably, the other circuits have also been split on this issue. For example, in Hively v. Ivy Tech Community College of Indiana,14 the Seventh Circuit held that discrimination on the basis of an individual’s sexual orientation is a form of sex discrimination prohibited by Title VII. The Supreme Court granted certiorari in Bostock’s, Zarda’s, and Stephens’ cases to resolve this ongoing lack of agreement among the circuits.15
The Court’s Analysis
In Bostock, the Supreme Court was asked to decide whether Title VII’s prohibition against sex discrimination prevents employers from taking adverse action against individuals on the basis of their sexual orientation or transgender status. In a 6-3 ruling, the Court held that discrimination on the basis of an employee’s sexual orientation or transgender status constitutes unlawful sex discrimination under Title VII. The opinion was written by Justice Neil Gorsuch, appointed by Pres. Trump in 2017. Chief Justice John Roberts, along with Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan, joined in the majority opinion.
Courts analyze Title VII sex discrimination claims using a “but-for” causation standard.16 But-for causation exists when an employer would not have taken the adverse action if not for the individual’s protected status.17 As the Supreme Court explained in Bostock, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”18 In a sex discrimination case, the question is whether the employer took adverse action against an individual in part because of sex.19
The parties agreed that the term “sex,” as used in Title VII, refers to the biological distinction between male and female.20 However, as the Court noted, the analysis does not stop there. The Supreme Court has previously found that adverse actions taken against individuals because of traits or actions that are inextricably intertwined with sex might constitute unlawful sex discrimination.
The Court examined three such cases in deciding Bostock. First, in Phillips v. Martin Marietta Corp., the Supreme Court held that an employer engaged in sex discrimination when it refused to hire women who had young children but hired men who had children the same age. Similarly, inLos Angeles Dep’t of Water & Power v. Manhart, the Court found that an employer’s policy requiring women to make larger contributions to their pension fund than men, allegedly because women have longer life expectancies, was unlawful sex discrimination. Finally, in Oncale v. Sundowner Offshore Services Inc., the Court found that a male plaintiff could have an actionable claim for sexual harassment committed by his male coworkers, holding that it was immaterial that those committing the harassment were the same sex as the victim.21
In a sex discrimination case, the question is whether the employer took adverse action against an individual in part because of sex.
In each of these precedential cases, the key inquiry was whether the adverse action would still have occurred if the plaintiff had been the opposite sex, or in other words, but for their sex.22 If not, then there was a cognizable claim for sex discrimination under Title VII.
Applying the same analysis to the cases at issue in Bostock, Justice Gorsuch wrote:
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. 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.”23
The Court explained this conclusion using the example of a hypothetical employer that employs two materially identical individuals, except one is a man and the other is a woman, both of whom are attracted to men.24 “If the employer fires the male employee for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”25
The same analysis applies if an employer fires an employee who is transgender but retains an otherwise identical employee who is not transgender.26 In both situations, the terminated employee’s sex “plays an unmistakable and impermissible role in the discharge decision.”27
As such, the Court reasoned, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”28
Also of Interest
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Wisconsin and Other States
In 1982, Wisconsin became the first state to ban workplace discrimination on the basis of sexual orientation when it amended the Wisconsin Fair Employment Act (WFEA).29 The WFEA makes it unlawful for employers to refuse to hire, terminate, or otherwise discriminate against individuals on the basis of several protected categories, including sexual orientation.30 Sexual orientation is defined by the WFEA as “having a preference for heterosexuality, homosexuality, or bisexuality, having a history of such a preference or being identified with such a preference.”31 The WFEA, however, does not include protections for individuals who are transgender.
Twenty-two states and Washington, D.C. have enacted comprehensive antidiscrimination laws that protect employees from discrimination on the basis of their sexual orientation and gender identity.32 A handful of other states offer protection on these bases to public employees only.33 One-third of the states lack any specific workplace protections for gay or transgender individuals.34
State Versus Federal: Practice Considerations
Although the WFEA has protected Wisconsin employees from discrimination based on their sexual orientation for nearly 40 years, the Bostock ruling expands those protections to transgender individuals and provides an alternative venue for many employees to pursue their discrimination claims.
When deciding whether to pursue a sexual orientation discrimination claim under federal law or Wisconsin law, there are several considerations. First, not all employers are subject to both laws. Title VII covers employers with 15 or more employees, as well as federal, state, and local governments.35 The WFEA applies to any agency, person, or business that employs at least one individual, but it does not cover federal government or American Indian tribal employers.36
Remedies also vary between state and federal discrimination claims. WFEA remedies generally include back pay, reinstatement, interest, attorney fees, and costs.37 In addition to these remedies, Title VII also allows for front pay, compensatory damages, and punitive damages.38
The litigation process is also different for state and federal discrimination claims. Claims brought pursuant to the WFEA must be filed with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development. Complaints filed with the ERD proceed through an initial probable-cause investigation before moving on to an administrative hearing. Parties may appeal hearing decisions to the Labor and Industry Review Commission and, thereafter, to a Wisconsin circuit court.
Alternatively, claims brought under Title VII are initially filed with the Equal Employment Opportunity Commission (EEOC). Claimants must obtain a notice of right to sue from the EEOC before filing a lawsuit in federal court.39 Unlike claims filed under the WFEA, Title VII claims are not subject to administrative hearings; however, claimants generally must allow the EEOC 180 days to resolve their claim before requesting a notice of right to sue.40
Although many states, including Wisconsin, have already enacted their own antidiscrimination laws that protect either gay or transgender individuals, or both, in the workplace, the Bostock decision secures protection for these workers nationwide. Although Title VII does not explicitly prohibit discrimination on the basis of sexual orientation or transgender status, the Supreme Court found that employment decisions made on these bases turn on the individual’s sex and, accordingly, constitute unlawful sex discrimination.
Despite the Supreme Court’s ruling, Gerald Bostock’s battle is not over. He will now return to the U.S. District Court for the Northern District of Georgia to litigate his underlying case, which had originally been dismissed based on that court’s determination that Title VII did not provide a cause of action for sexual orientation discrimination.41 Although joining the Hotlanta Softball League cost him his job, his health insurance, and many years of litigation, he calls it “one of the best decisions [he] has ever made.”42 Regarding his long legal journey, he went on to say, “I didn’t ask for this, but it needed to be done.”43
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Brianna M. Covington, Alan C. Olson & Associates S.C., New Berlin.
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1 Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020).
2 Reuters, In Landmark Ruling, Supreme Court Bars Discrimination Against LGBT Workers.
3 Washington Post, Fired After Joining a Gay Softball League, Gerald Bostock Wins Landmark Supreme Court Case.
6 Bostock, 140 S. Ct. at 1738.
9 42 U.S.C. § 2000e-2(a)(1).
10 Bostock, 140 S. Ct. at 1745.
11 Bostock v. Clayton Cnty., 723 F. App’x 964 (11th Cir. 2018).
12 Zarda v. Altitude Express, 883 F. 3d 100 (2d Cir. 2018); E.E.O.C. v. R.G. & G.R. Harris Funeral Homes Inc., 884 F. 3d 560 (6th Cir. 2018).
13 Bostock, 140 S. Ct. at 1738.
14 Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F. 3d 339 (7th Cir. 2017) (en banc).
15 Bostock, 140 S. Ct. at 1738.
16 Id. at 1739.
19 Id. at 1744.
20 Id. at 1739.
21 Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam); Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75 (1998).
22 Bostock, 140 S. Ct. at 1743-44.
23 Id. at 1737.
24 Id. at 1741.
27 Id. at 1741-42.
28 Id. at 1741.
29 Fair Wisconsin, Ending Discrimination, (last visited Sept. 3, 2020).
30 Wis. Stat. § 111.321.
31 Wis. Stat. § 111.32(13m).
32 Human Rights Campaign, State Maps of Laws & Policies, (last visited Sept. 3, 2020).
35 42 U.S.C. § 2000e.
36 Wis. Stat.§ 111.32(6); DWD, Sexual Orientation Protection, (last visited Sept. 3, 2020).
37 DWD, Fair Employment Law & Family Medical Leave Act Remedies at a Glance, (last visited Sept. 3, 2020).
39 U.S. EEOC, After You Have Filed a Charge, (last visited Sept. 3, 2020).
41 Orlando Sentinel, Sole Surviving Plaintiff in Supreme Court’s LGBTQ Ruling: The Fight Isn’t Over.
42 Washington Post, supra note 3.