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How will the landmark Title VII decision in Bostock affect employer liability standards for LGBTQ+ employees?

Tim Sarsfield Chuck Poplstein Cliff Godiner Amy Oslica Dougherty June 16, 2020

As many had anticipated, by a 6-3 vote, the United States Supreme Court confirmed that it is unlawful under Title VII of the Civil Rights Act of 1964 for an employer to discharge or otherwise discriminate against an employee for being gay or transgender. A copy of the Court’s opinion in Bostock v. Clayton County, Georgia can be found here.

The Court reasoned that dismissing someone because of their sexual orientation or transgender status falls within Title VII’s prohibition against discriminating based on sex because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Throughout the opinion, the majority gave a number of practical examples of what its holding means in practice. For instance, the Court gave the example of two employees, both of whom are attracted to men. The two employees are identical in every respect, except one is a man and one is a woman. The Court stated that if the employer were to fire the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits that it tolerates for the female employee and, thus, “the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”

The Court noted that it does not matter if other factors contribute to the employee’s decision. Title VII, the Court concluded, makes each instance of discriminating against an individual because of an individual’s sex a violation. The Court noted that the only issue before the Court was whether an employer who fires someone simply for being homosexual or transgender has violated Title VII — it did not address other defenses to Title VII actions, such as the free exercise of religion, and left open the possibility that in appropriate cases an exception to this ruling based on the free exercise of religion may exist.

Of considerable import for application of Title VII overall was the Court’s discussion of the causation standard set forth in Title VII. Under Title VII, it is unlawful for an employer to discharge or otherwise discriminate against an individual “because of such individual’s race, color, religion, sex, or national origin.” This “because of” language incorporates a but-for causation standard. As a result, even if other factors besides the employee’s sex contributed to the decision, an employer who would not have ultimately taken the same action against someone of a different gender still violates the statute. The Court held that there can be multiple “but for” causes of an employment action and that if any of them are a protected classification under Title VII (e.g., race, color, religion, sex, national origin), liability is automatically established.

Additionally, the Court highlighted the statute’s use of the term “individual,” noting that Title VII does not consider, for instance, whether the employer treated women as a group the same as it treated men as a group. Instead, the focus is on whether the employer intentionally fires an individual (or takes some other adverse employment action) based, in part, on the employee’s sex (or some other protected characteristic). The law makes each instance of discrimination against an individual a violation of the statute.

The Court’s decision thus has implications for employers across the country, especially employers located in states or locales where there are no state or local law prohibiting discrimination based upon sexual orientation or gender identity. In those states, homosexual and transgender employees will now be able to utilize Title VII to bring actions against their employer when they experience adverse employment actions based on those characteristics. However, as the Court noted, there certainly will be many more cases in the future further addressing the reach of this opinion.

Tim Sarsfield, Chuck Poplstein, Cliff Godiner and Amy Oslica Dougherty are members of Thompson Coburn’s Labor & Employment practice group.