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Bostock v. Clayton County – Sexual Orientation Anti-Discrimination Ruling – important parts of the ruling that don’t make the headlines

June 15, 2020 | News
Bostock v. Clayton County – Sexual Orientation Anti-Discrimination Ruling – important parts of the ruling that don’t make the headlines

 While headlines from today’s Supreme Court ruling on employment discrimination against LGBTQ workers – Bostock v. Clayton County – have focused on the main holding, there are important parts of the opinion that protect employees in other contexts, while ruling that organizations with core religious functions – churches, synagogues, mosques – are not affected by this ruling, while leaving for another day the effect on religiously motivated private employers.  


 Today, the Supreme Court decided a landmark case, Bostock v. Clayton County, ruling that the 1964 Civil Rights Act prevents workplace discrimination against people who are gay, lesbian, bisexual or transgender.  Prior to Bostock, 21 states had state-level protections from employment discrimination for LGBTQ employees, but the rest did not.  The case came to the Supreme Court because there was a split in the law. The Second Circuit Court of Appeals (covering New York, Connecticut and Vermont) had ruled that the 1964 Civil Rights Act covered discrimination against LGBTQ people on the basis of sex.  But the Fifth Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) had ruled exactly the opposite.

Headline Ruling

 By a 6-3 margin, the Supreme Court ruled that employers cannot discriminate against LGBTQ people in employment decisions – hiring, firing, transfers. 

 Parts of the ruling that don't get the headlines, which are good for other classes of employees

 Beneath the headlines, there are a few interesting quotes from the majority of the Court that may have an outsize effect on employment law cases. 

 The Supreme Court undercut one of the common defenses of employers in discrimination cases, the tendency for an employer to point to other members of the group and claim that shows there was no discrimination.  In a pregnancy discrimination case we litigated, the defendant argued that many of its employees were either pregnant or had children.  We argued, then unsuccessfully, that it only mattered what the employer did to that employee.  The employer’s treatment of a manager, who was expected to work long hours and weekends for three months in a summer with no days off, caused the employer to fire the manager when she was 8.5 months pregnant.  This same employee suffered sexual harassment, and she spent her extra time fixing timecards for younger employers who failed to report correctly.  The Supreme Court’s reversal of Fifth Circuit defenses would have been a great help. 

 The Supreme Court’s focus on the single employee, and refusal to engage in an employer’s group-dynamics defense, will likely make a lasting impact in employment cases.  The Court stated:

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So 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. Instead of avoiding Title VII exposure, this employer doubles it.

 Next, the Supreme Court undercut a common employer defense tactic of pointing to a plausible reason for the termination – some alleged bad conduct on the part of the employee in the protected class, and using that as a justification for the termination of a protected employee.  This focus on the secondary reason, the Supreme Court ruled, will not hold if the member of the protected class was treated differently because of their status:

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. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).

 That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.

 Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here.

 When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (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.

The Supreme Court summarized the main points of its legal analysis, while stating that the rules are “familiar” and pointing to prior cases supporting those holdings. The important point is that District Courts had frequently ignored the precedent and held the opposite.  The reason the Supreme Court had to highlight these rulings, and show that they had a firm legal basis, was that the defendant employers in Bostock, and countless other cases, had relied on lower court rulings which held the opposite.  The Supreme Court highlights:

 The lessons these cases hold for ours are by now familiar. First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer called its rule requiring women to pay more into the pension fund a “life expectancy” adjustment necessary to achieve sex equality. In Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.

 Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the defendant easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. So, too, it has no significance here if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision.

 Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.

 The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration. See, e.g., Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992); Rubin v. United States, 449 U. S. 424, 430 (1981).

Each of these “lessons” should be quoted repeatedly by any plaintiff in any kind of employment discrimination case.  They undercut three of the most popular employer defense tactics to cover-over unlawful discrimination.  They will assist people discriminated against based on race, age, religion, pregnancy, as well as sex and sexual orientation.

 What the case did not do

a.  Not a constitutional ruling – so it can be overturned at the ballot box

 One important thing to note is that the Supreme Court in Bostock was interpreting a statute, the 1964 Civil Rights Act.  The Court did not rule on a constitutional issue, like equal protection under the 14th Amendment.  The distinction is important.  As long as the 1964 Civil Rights Act remains the law, the effect is the same, LGBTQ people cannot be discriminated against in employment decisions.  However, because the Court was interpreting a statute, Congress can change the statute if they don’t like the Court’s decision.  In effect, if Congress (and the President) decide that they don’t agree with this interpretation of the law, they can change the law to explicitly state that it does not apply to LGBTQ people.  This happened in the other direction when Congress clarified the 1964 Civil Rights Act to prevent pregnancy discrimination, and in 1991, made explicit that it did not agree with a Supreme Court decision on the burden of proof in employment discrimination cases.

If Bostock were a case interpreting the Constitution, or a Constitutional Amendment – for instance ruling that the Equal Protection Clause of the 14th Amendment applied to discrimination against LGBTQ people – the only way to change it would be a constitutional amendment.  The reach of a ruling on constitutional grounds for LGBTQ people, like when the Supreme Court ruled that the Equal Protection Clause of the 14th Amendment required States to allow same-sex marriage, paves the way to further rights under the Equal Protection Clause. 

 Accordingly, since this case was brought under the 1964 Civil Rights Act, it can be impacted by other legislation – which also means it can be impacted at the ballot box. 

 b.  Core religious employers excluded, religiously-motivated private employers not addressed

The Court did not extend the ruling to core religious employers, specifically churches, synagogues and other religious institutions.  The opinion did not address – and specifically excluded – any discussion of employers of non-overtly religious businesses who have strong faith beliefs – bakers, Hobby Lobby and the like, who have been the subjects of other types of religious freedom cases by private employers without a directly religious product or service. 

 The Court instead recognized the importance of preserving the free exercise of religion for core religious functions.  Near the end of the opinion, the Court stated:

Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute 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. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3. But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

 Accordingly, religion was not directly at issue in the case.  The employer parties could have argued the Religious Freedom Restoration Act (RFRA), but they chose not to bring it up on appeal.  They wanted to have the case decided only on the issue of whether the employer could discriminate on the basis of sexual orientation.  However, it is very likely that a RFRA case will come before the court before too long, on the issue of religiously-oriented private employers ability to make employment decisions based on religion that impact LGBTQ employees.

Moving Away from Original Intent

 Another interesting aspect of the 6-3 ruling is that six justices did not adhere to “Originalism” in interpreting the statute.  Originalism was a doctrine advanced by the late justice Antonin Scalia, in which statutes or even the Constitution were interpreted according to how law makers thought at the time.  It was always controversial, due to the legal gymnastics of speculating how people long ago would feel about legal issues today. 

 For example, how George Washington might have felt about class actions lawsuits in the electronic age simply isn’t possible to know.  Nevertheless, as recently as 2016, a letter from George Washington was cited as the lead-off for class action analysis.  See Campbell-Ewald v. Gomez, 136 S.Ct. 663 (2016) (Roberts, Scalia, and Alito in Dissent).  As such, Originalism was sometimes an excuse for disregarding modern needs to reach a desired result.

 In Bostock, the six judges for the majority included Chief Justice John Roberts and Trump-appointed Neil Gorsuch.  While it may be too early to pronounce Originalism dead, the Bostock case is precedent for it being disfavored.  At the very least, with social issues, the Court is now unbound by original intent.


Joseph M. Schreiber

Founding Partner

Erik A. Knockaert

Founding Partner