Does employment discrimination on the basis of an employee’s sexual orientation constitute a form of sex discrimination prohibited by Title VII of the Civil Rights Act?
This case consolidates two lawsuits, each containing a claim by an employee alleging that he was terminated by his employer because of his sexual orientation. These employees argue that Title VII of the Civil Rights Act, which proscribes discrimination “because of . . . sex,” inherently prohibits sexual orientation discrimination because one’s sexual orientation necessarily depends on one’s sex. To further support this argument, the employees contend that Title VII’s plain language, statutory and judicial history, and other provisions all support interpreting the statute to prohibit discrimination on the basis of sexual orientation. The employers counter that the plain meaning of “because of . . . sex” at the time of Title VII’s enactment, and courts’ reliance on this plain meaning in their past decisions, indicate that Title VII does not prohibit sexual orientation discrimination. The case’s outcome will have heavy implications for LGBT workers and business’ bottom lines.
Questions as Framed for the Court by the Parties
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
This case consolidates two cases: the first brought by Gerald Lynn Bostock (“Bostock”) and the second by Altitude Express, Inc. and Raymond Maynard (collectively “Altitude Express”).
In Bostock v. Clayton County, Georgia, Gerald Lynn Bostock—a gay man—worked for Clayton County, Georgia (“Clayton County”) as a Child Welfare Services Coordinator at the Juvenile Court of Clayton County. Bostock began participating in the Hotlanta Softball League—a gay recreational softball league. Bostock alleges that powerful individuals in Clayton County publicly criticized his participation in the softball league and his sexual orientation, including defamatory comments made during a Clayton County Advisory Board Meeting. After a few months, Clayton County conducted an internal audit on Bostock’s program. Clayton County subsequently terminated Bostock, stating that his conduct was “unbecoming of a County employee.”
Bostock sued Clayton County arguing that he was fired because of his sexual orientation, which violated Title VII of the Civil Rights Act of 1964. Bostock later amended his complaint to include a claim for sex discrimination based on his failure to obey a sex stereotype. Clayton County moved to dismiss Bostock’s claim arguing that Title VII does not cover sexual orientation. The United States District Court for the Northern District of Georgia granted the County’s motion and dismissed Bostock’s complaint. Bostock then appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the District Court’s decision under the prior panel precedent rule—where a court chooses to abide by its past reasoning even though it now disagrees with it. Bostock appealed the Eleventh Circuit’s holding to the Supreme Court.
In Altitude Express, Inc. v. Zarda, Donald Zarda, a gay man, worked at Altitude Express Inc. as a skydiving instructor. To alleviate any concerns that female clients might have about being strapped to a male instructor during tandem skydives, Zarda sometimes informed female clients about his sexual orientation. On one occasion, a female client claimed that Zarda inappropriately touched her and only told her about his sexual orientation to excuse his behavior. Altitude Express fired Zarda after the client’s boyfriend reported the incident to Zarda’s boss. Zarda sued in the United States District Court of the Eastern District of New York alleging that his termination violated Title VII and New York law. The District Court granted Altitude Express’s motion for summary judgment on Zarda’s Title VII claim and denied the motion on Zarda’s state-law claim. Zarda appealed the District Court’s ruling to the United States Court of Appeals for the Second Circuit which overruled the summary-judgement decision and held that the action could proceed. Altitude Express then appealed the Court of Appeals’ ruling to the Supreme Court.
TITLE VII’S PLAIN LANGUAGE MEANING OF “SEX”
Bostock asserts that the plain language of Title VII’s clause “because . . . of sex” prohibits sexual orientation discrimination because it is a form of sex discrimination. Bostock argues that an employer must first ascertain an employee’s sex before determining the employee’s sexual orientation. Therefore, Bostock contends that any discrimination based on sexual orientation inherently relies on a consideration of sex which Title VII prohibits.
Bostock also asserts that discrimination based on an employee’s association with a person of the same sex is a form of sex discrimination.According to Bostock, when an employer discriminates against an employee for associating with a person of the same sex, the employer is effectively discriminating against the employee because of the employee’s sex. Bostock further contends that discrimination against an employee for declining to abide by sex stereotypes amounts to sex discrimination. For example, Zarda emphasizes that an employer who discriminates against an employee for not being attracted to members of the opposite sex engages in sex discrimination because it discriminates against the employee for failing to have a sex-based trait.
Clayton County counters that the original public meaning of “because . . . of sex” only prohibits discrimination on the basis of sex, not sexual orientation. Clayton County asserts that the interpretation of sex must be based on a common, ordinary understanding of the term as Congress would have read it at the time that Title VII was enacted, in 1964. Additionally, Altitude Express argues that otherwise the Court would be rewriting the statute, a task that should be exclusively within Congress’s purview. Accordingly, Clayton County contends that the Court should interpret Title VII based on the public’s understanding at the time that it was originally enacted in 1964, rather than rely on a present-day interpretation. Consequently, Clayton County argues that at the time of Title VII’s enactment in 1964, sex was commonly understood as the trait of being male or female and did not refer to sexual orientation.
Even if the Supreme Court were to rule on the meaning of sex based on a present-day interpretation, Clayton County asserts that the meaning of sex in 1964 has retained the same meaning that it has today. Moreover, Clayton County rejects Bostock’s argument that sexual-orientation discrimination depends on an employee’s sex and is thus prohibited by Title VII because sex and sexual orientation are distinct terms and are not commonly conflated with one another. Furthermore, since sex is listed alongside other traits and characteristics in Title VII—race, color, religion, and national origin—rather than behaviors, Clayton County maintains that Title VII only prohibits discrimination on the basis of a sex-based trait—being male or female—rather than sexuality.
TITLE VII’S STATUTORY HISTORY AND CONTEXT
Bostock contends that Title VII’s statutory history and context indicate that the clause “because . . . of sex” prohibits discrimination on the basis of sexual orientation. Bostock explains that Congress’s understanding of “because . . . of sex” has evolved over time, first in 1978 after it passed the Pregnancy Discrimination Act in response to the courts’ narrow interpretation of Title VII, and again when it amended Title VII in 1991 to reflect the Supreme Court’s broader interpretation of the relevant language. Specifically, Bostock argues that before 1991 the Supreme Court had previously held in a string of cases that discrimination “because . . . of sex” encompassed more than the statute’s explicit types of discrimination, and Congress implicitly incorporated those rulings by not altering the relevant language of the Civil Rights Act of 1991. Additionally, Zarda asserts that Title VII goes beyond what Congress originally contemplated in 1964 as discrimination “because . . . of sex,” especially in light of the Court’s decision in Oncale v. Sundowner Offshore Services, Inc. to extend sex-based discrimination to include other “reasonably comparable evils.”Moreover, Bostock notes that the Oncale decision was in line with the Supreme Court’s trend of interpreting statutory language more broadly than Congress’s original understanding at the time of enactment.
Clayton County argues that Title VII’s statutory and judicial history suggests that the Court should interpret Title VII consistent with the original public meaning of sex. Altitude Express also asserts that Title VII’s original public meaning of sex was to prevent the disparate treatment of men and women, not to forbid sexual-orientation discrimination. Additionally, Clayton County contends that the Oncale decision reaffirmed Title VII’s original public meaning: to prohibit disadvantageous employment conditions for one sex. Furthermore, Clayton County argues that Bostock’s line of cases do not support interpreting sex more broadly, but instead affirm Title VII’s original meaning. For example, it stresses that none of these cases involved sexual-orientation discrimination, but rather instances of unequal treatment because the employee was male or female.
CONSISTENCY OF THE BROADER STATUTE
Bostock asserts that interpreting Title VII to not cover sexual orientation discrimination would conflict with § 2000e-2(m) in Title VII which prohibits employment practices motivated by both legitimate and illegitimate considerations, including race, color, religion, sex, or national origin. Specifically, Bostock explains that because sexual orientation is dependent on sex, a decision discriminating based on sexual orientation involves an illegitimate motive—an employee’s sex—violating § 2000e-2(m). Thus, Bostock argues that it would be inconsistent for Title VII to contain both § 2000e-2(m) prohibiting employment practices that consider sexual orientation and § 2000e-2(a) language “because . . . of sex” allowing for sexual-orientation discrimination in the workplace.
Additionally, Zarda contends that because sexual-orientation discrimination is a subset of sex discrimination, the two are sometimes confused. Similarly, Bostock asserts that courts have produced confusing and conflicting decisions because they struggle to distinguish between sex-motivated decisions and sexual-orientation discrimination. Bostock explains that the resulting Title VII jurisprudence has led to unpredictable court decisions and invasions of privacy when determining employees’ sexual orientation—both of which were likely not Congress’ intended outcomes.
Clayton County counters that there is no clash between § 2000e-2(a) and § 2000e-2(m). It stresses that the § 2000e-2(m) provision—which proscribes employment decisions motivated in part by sex—determines the extent to which discrimination was based on sex, not the means to define sex discrimination. In support of this argument, Altitude Express argues that § 2000e-2(m) does not define what is encompassed in sex-based discrimination, but rather establishes a causation standard regarding which types of motives qualify as impermissible sex discrimination. Clayton County asserts that because sexual-orientation discrimination does not depend on sex, sexual orientation is not an illegitimate consideration, and therefore does not violate § 2000e-2(m).
Furthermore, Clayton County argues that interpreting Title VII to permit sexual-orientation discrimination is workable for lower courts’ analysis and decision-making. According to Clayton County, the confusion around the distinction between sex-stereotype discrimination and sexual-orientation discrimination stemmed from the lower courts’ misapplication of past Supreme Court cases. Clayton County notes that despite the lower courts’ confusion, the proper remedy is disseminating further guidance to those courts, not reinterpreting Title VII to forbid sexual-orientation discrimination.
In support of Bostock, 206 Businesses from diverse sectors of the national and local economy (“Businesses”) assert that excluding sexual orientation from Title VII’s protection against sex discrimination would impair national business interests. Businesses contend that workforce diversity is beneficial to U.S. businesses because it encourages creativity and innovation in the workplace, which improves businesses’ connection with consumers, enhances employee work performance, and generates greater financial outcomes. The Southern Poverty Law Center and other organizations (“SPLC”) further maintain that LGBT people still encounter grave workplace discrimination. The SPLC argues that without Title VII’s protections, LGBT employees will encounter unemployment, leading to individual harms such as decreased income, barriers to accessing healthcare, and worsening health, as well as broader societal harms. Likewise, Businesses assert that the failure to include sexual orientation discrimination under Title VII’s protections would cause LGBT employees to conceal their sexual orientation, which would likely worsen their health and prevent them from performing effectively in the workplace. Thus, Businesses contend that the exclusion of sexual-orientation discrimination from Title VII’s protections harms businesses’ bottom lines and overall economic growth.
Business Organizations, in support of Clayton County, counter that newly interpreting Title VII to include sexual-orientation discrimination disregards the considerations Congress may have made for businesses at the time that it passed this legislation. Business Organizations argue that Congress is best situated to investigate and evaluate the facts and concerns presented by businesses, a function that is beyond the judiciary’s capacity. Additionally, Business Organizations assert that including sexual-orientation discrimination under Title VII’s protections would create a range of complex issues that the Court is not equipped to address and would complicate the ability of employers to effectively comply with the law.The H.T. Hackney Co. (“Hackney”) affirms this idea and asserts that overturning the Court’s 55 years of uniform interpretation of Title VII is an unjust deprival of companies’ due process and prevents them from relying on the legislation. For example, Hackney explains that reinterpreting Title VII to include sexual orientation would render their health insurance’s definition of marriage—based on sexual orientation—unlawful and thus would subject the company to unanticipated liability.
SAFEGUARDING LGBT INTERESTS
The SPLC, in support of Bostock, argues that LGBT workers will be harmed without Title VII protections. It asserts that approximately 47% of LGBT workers have been discriminated against on account of their sexual orientation or transgender status. Moreover, it notes that 37% of lesbian and gay individuals and 90% of transgender individuals have experienced workplace harassment. The American Bar Association (“ABA”) affirms these statistics and points to a recent study indicating that one in five LGBTQ individuals have been discriminated against while seeking a job, equal pay, or a promotion. The ABA asserts that LGBT individuals are subject to intense discrimination because there is no explicit national protection. For example, it explains that of the 8.1 million LGBT workers in the United States, approximately half live in states that have no express legislation protecting them.
The State of Tennessee et al. (“Tennessee”), in support of Clayton County, counters that Title VII does not protect against sexual-orientation discrimination and the Court may not read such protections into the statute. Tennessee emphasizes that the judiciary may not interpret the statute based on moral judgments that LGBT individuals should receive protection. Instead, Tennessee argues that Congress or individual states should enact such provisions because they are better equipped to protect LGBT individuals. It asserts that Congress’ function is to write federal statutes because Congress—not the judiciary—is more attuned to the needs of constituents, like LGBT individuals. For example, Tennessee points to federal laws that already protect LGBT individuals in other contexts, such as the Violence Against Women Act preventing discrimination based on sexual orientation in receiving federal grants, and a 2010 statute prohibiting hate crimes motivated by sexual orientation. Tennessee also notes that states are even better equipped to enact legislation protecting LGBT workers than Congress because they are more aware of and receptive to local interests and individual LGBT concerns.
- Harry Litman, The Trump Administration Jumps Into a High-Stakes Court Case in Support of Intolerance, The Washington Post (Aug. 27, 2019).
- Robin Kemp, Clayton County Gay Rights Case Could Set Precedent, Clayton News Daily (July 23, 2018).