SCOTUS Rules Against LGBTQ Workplace Discrimination in Bostock

Judge Dan Hinde

In a landmark civil rights case for the LGBTQ community, the Supreme Court on Monday ruled in a 6-3 decision, with Justices Alito, Thomas, and Kavanaugh dissenting, that it is unconstitutional for employers to not hire or fire employees based on their sexual orientation or gender presentation.

The court ruled on Bostock v. Clayton County, Georgia, but two other cases that involved individuals being fired for being homosexual or transgender coupled this case. In Altitude Express, Inc. v. Zarda, Donald Zarda was fired days after he mentioned to a customer that he was gay. In R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, Aimee Stephens, who presented as male when she was hired, was fired by her employer after she told them she wanted to “live and work full-time as a woman.” In Bostock, Clayton County fired Gerald Bostock from his job as a child welfare advocate for “unbecoming” conduct as a county employee when it was made evident to his employer that Bostock played in a gay recreational softball team.



All of these employees filed suit under Title VII of the Civil Rights Act of 1964 alleging discrimination based on sex. Bostock’s case was heard by the 11th Circuit Court of Appeals, which found that Title VII does not prohibit employers from firing employees for being gay and was dismissed as a matter of law. On the other hand, the Second and Sixth Circuit Court of Appeals heard Zarda’s case and Stephens’ case, respectively, and ruled in favor of their suits.

Justice Gorsuch, writing for the majority opinion, makes clear that sexuality and gender are distinct from sex and that the term “sex” may not have necessarily been written in 1964 with homosexuals and transgender people in mind. However, Justice Gorsuch states, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” Ultimately, it is the words of the law that are paramount, not the intentions of their authors.

‘the limits of the drafters’ imagination supply no reason to ignore the law’s demands.’

Title VII of the Civil Rights Act of 1964 states, that it is “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.” At base, because Title VII uses the phrase, “because of,” meaning “by reason of” or “on account of,” the law stipulates that whenever a particular outcome would not have happened “but for” a specific reason, in this case “but for” an individual’s sex, it is grounds for unconstitutionality. Thus, an employer who treats an individual worse because of their sex — “such as by firing the person for actions or attributes it would tolerate in an individual of another sex” — discriminates against that individual and violates Title VII.

The language of this law also stipulates protections for individuals rather than classes of people, thereby rendering unconstitutional the discrimination against an individual unconstitutional even if general preferential or equal treatment is given to categories of individuals. Justice Gorsuch illustrates an example to make his case: “an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex.” Although the employer treated Hannah and Bob equally by firing them, he fired them on the basis of their sex because they did not conform to the employer’s conception of masculinity and femininity, which violates Title VII.

Put differently, if an employer employs two individuals who are both attracted to men and who are both “materially identical in all respects, except that one is a man and the other a woman,” but fires the man, the employer is operating under the construction that men cannot be attracted to men. In other words, because the employer discriminates against the same traits or actions they tolerate in the female employee, the male employee’s sex is the reason for his firing, which this Court has deemed unconstitutional.

Further, the Court found that when an employer discriminates against homosexual or transgender individuals, the employer, in turn, intentionally relies on sex to make that decision. Because discrimination based on sexuality or gender presentation requires an employer to intentionally do so on the basis of sex, the different treatment of homosexual and transgender individuals breaches Title VII.

Precedents established by three previous court cases were instructive in the Court’s decision for Bostock. In Phillips v. Martin Marietta Corp (1971), the employer was found to have violated Title VII because it refused to hire women who had children despite the fact that it hired men who had children and, generally, favored hiring women over men. The Court found, however, that when an employer intentionally discriminates against an individual only in part because of sex, the employer violates Title VII.


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Likewise, in Los Angeles Dept. of Water and Power v. Manhart (1978), an employer required women to make larger pension contributions than men and justified this requirement based on statistics stating that women lived longer than men. Even though the employer argued that it tried to achieve class wide equality between the sexes, the Court ruled that a requirement that may seem evenhanded at the class level can be discriminatory at the individual level. Arguing that although it is true women as a class may live longer than men, any individual woman may make larger pension contributions than men and still die earlier. Ultimately, the Court found that even if an employer’s rule is instated with intentions of equality, if it treats employees differently on an individual level on the basis of sex, it violated Title VII.

Lastly, in Oncale v. Sundowner Offshore Services, Inc (1998), a male employee filed a complaint under Title VII against his employer alleging that he was sexually harassed by his male co-workers because he was male. The Court unanimously found that because the plaintiff would not have suffered this treatment if he were female, a Triable Title VII claim existed. Thus, the actions of the male coworkers were predicated on the plaintiff’s sex, which violates Title VII.

Justice Alito interprets the statue’s terms to ‘mean what they conveyed to reasonable people at the time they were written.’

However, Justice Alito, writing the dissent, disagrees with the Court’s finding. He makes his claim on the grounds that Title VII never mentions “sexual orientation” or “gender identity,” and so, “Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant.” While the majority opinion takes a broader look at Title VII’s stipulation, Justice Alito interprets the statue’s terms to “mean what they conveyed to reasonable people at the time they were written.”

But, as the Court found, if an employee were to be treated differently if they weren’t gay or transgender, this is a violation of Title VII. Ending the majority opinion, Justice Gorsuch states, “An employer who fires an individual merely for being gay or transgender defies the law.”

Read the full opinions on Bostock v. Clayton County, Georgia here. 

Michael Galati

Michael Galati is an editorial intern with Attorney at Law Magazine. He is currently enrolled at New York University, College of Arts and Science, pursuing a Bachelor of Arts in English and American Literature. He is expected to graduate May 2022.

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