Labor & Employment Law Daily Firing an employee merely for being gay or transgender violates Title VII
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Wednesday, June 17, 2020

Firing an employee merely for being gay or transgender violates Title VII

By Kathleen Kapusta, J.D.

It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex, the Court majority declared.

“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,” a divided U.S. Supreme Court has ruled in a highly anticipated decision. Writing for the majority in three consolidated cases involving employees allegedly fired for being either gay or transgender, Justice Gorsuch, who was joined by Justices Roberts, Ginsberg, Breyer, Sotomayor, and Kagan, noted that while those who adopted the Civil Rights Act “might not have anticipated their work would lead to this particular result,” that is no reason to ignore the law’s demands (Bostock v. Clayton County, Georgia, June 15, 2020, Gorsuch, N.).

Each of the three cases before the Court—Bostock v. Clayton County, Georgia; Zarda v. Altitude Express, Inc., and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC —involved the termination of a long-time employee; two were fired shortly after revealing they were gay and the third, an employee who initially presented as a male, was fired after telling her employer she planned to “live and work full-time as a woman.” While the Eleventh Circuit, in Bostock, held that Title VII does not prohibit employers from firing employees for being gay, the Second Circuit, in Zarda, found that discrimination based on sexual orientation does violate Title VII. Similarly, the Sixth Circuit, in R.G & G.R. Harris Funeral Home, held that Title VII prohibits employers from firing employees because of their transgender status.

But-for causation. Siding with the Second and Sixth Circuit, the Court, in determining the meaning of Title VII’s command 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 … sex,” turned to the definition of the statute’s key statutory terms in 1964, the year Title VII was adopted. Assuming that “sex” referred to the biological distinctions between male and female, the Court noted that the ordinary meaning of “because of” is “by reason of” or “on account of.” Thus, the Court stated, Title VII’s “because of” test incorporates the “‘simple’ and ‘traditional’ standard of but-for causation.” So long as a plaintiff’s sex was one but-for cause of an adverse employment action, “that is enough to trigger the law.”

Discriminate. As for the definition of “discriminate” in 1964, “it meant then roughly what it means today”—treating an individual worse than others who are similarly situated. Accordingly, said the Court, an employer who intentionally treats a person worse because of sex discriminates against that person in violation of Title VII.

Focus is individuals. Further, Title VII focuses on individuals, not groups, the Court explained, observing that “From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” Moreover, 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 that individual based on sex.”

When an employer fires a gay or transgender employee, the Court observed, two causal factors may be in play—both the individual’s sex and the sex to which the individual is attracted or with which the individual identifies. “But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” These cases, said the Court, involve simply the straightforward application of legal terms with plain and settled meanings.

“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’”

Turning to the argument advanced by the employers here that there are a number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex, the Court explained that “each of these arguments turns out only to repackage errors we’ve already seen and this Court’s precedents have already rejected.” As to the assertion that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation, “these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause.”

Protected characteristic. Also rejected was the contention that because homosexuality and transgender status can’t be found on the list of Title VII’s protected characteristics, they are conceptually distinct from sex. While the Court agreed that they are distinct concepts, it found that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex as “the first cannot happen without the second.” For example, the Court pointed out, while sexual harassment is also conceptually distinct from sex discrimination, it can fall within Title VII’s sweep.

Nor was the Court swayed by the employers’ argument that despite considering proposals to add sexual orientation to Title VII’s protected characteristic, Congress has failed to act. “All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law an earlier Congress did adopt.” Rejecting the assertion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow, the Court found that “at odds with everything we know about the statute.”

Not foreseeable? Turning to the employers’ contention that few in 1964 would have expected Title VII to apply to discrimination against gay and transgender persons, the Court explained that “no ambiguity exists about how Title VII’s terms apply to the facts before us.” While Title VII’s application here “reaches beyond the principal evil legislators may have intended to address,” that did not demonstrate ambiguity but rather the “breadth” of a legislative command. Pointing out that not long after Title VII’s passage, gay and transgender employees began filing Title VII complaints, the Court noted that “at least some people foresaw this potential application.” Moreover, said the Court, nothing in the “meager history” of Title VII’s because of sex provision suggests it was meant to be read narrowly.

No elephant in a mousehole. In fact, the Court pointed out, over time the “breadth of the statutory language proved too difficult to deny.” For instance, in 1971, it observed, it held in Phillips v. Martin Marietta Corp. that treating women with children differently from men with children violated Title VII and by the late 1970s, courts began to recognize that sexual harassment can sometimes amount to sex discrimination. “Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.”

Religious convictions. Finally, addressing the employers’ fear that some employers, in complying with Title VII’s requirement in these types of cases, might violate their religious convictions, the Court pointed out that “worries abut how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage,” and therefore Congress included an express statutory exception for religious organizations. Moreover, the Religious Freedom Restoration Act prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. “But how these doctrines protecting religious liberty interact with Title VII are questions for future cases, too.”

Since it became law, said the Court, Title VII’s effects have unfolded with far-reaching consequences. “When it comes to statutory interpretation,” the Court observed, “our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.”

Alito dissent. In a lengthy dissent, Justice Alito, with whom Justice Thomas joined, argued that “Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H.R. 5’s provision on employment discrimination (a bill to amend Title VII to include “sexual orientation” and “gender identity,” which passed the House in 2019 but stalled in the Senate) and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.”

Explaining that it is the Court’s duty to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written,” he argued that if “every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.” In 1964, he continued, “the concept of prohibiting discrimination ‘because of sex’ was no novelty. It was a familiar and well-understood concept, and what it meant was equal treatment for men and women.”

Far-reaching consequences. Moreover, Alito contended, the Court’s interpretation of discrimination because of sex to encompass discrimination because of sexual orientation or gender identity “is virtually certain to have far-reaching consequences.” Over 100 federal statutes prohibit discrimination because of sex, which the Court failed to consider. And as to Title VII itself, “the Court dismisses questions about ‘bathrooms, locker rooms, or anything else of the kind.’”

The majority’s “brusque refusal to consider the consequences of its reasoning is irresponsible,” Alito asserted. “Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”

Kavanaugh dissent. In a separate dissenting opinion, Justice Kavanaugh pointed out that “Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”

Agreeing with Alito that the implications of the Court’s “usurpation of the legislative process” would likely reverberate in unpredictable ways for years to come, Justice Kavanaugh wrote, “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgment.”

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