Title VII is the portion of the federal Civil Rights Act that prohibits employers from discriminating on the basis of race, color, religion, sex, and national origin. It was first adopted by Congress in 1964. Last week, in a 6-3 ruling, the U.S. Supreme Court interpreted Title VII to prohibit discrimination on the basis of sexual orientation and transgender status. The Court’s ruling in Bostock v. Clayton County, 590 U.S. (2020), consolidated three decisions from different federal Courts of Appeals involving claims brought by employees fired either because of sexual orientation or transgender status.

The Court’s analysis began with Title VII’s text, which makes it “unlawful … 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.” 42 U.S.C. § 2000e-2.

The Court interpreted “sex” to mean the biological distinction between male and female. Although the definition of “sex” is somewhat limited, the language of Title VII expansively prohibits discrimination “because of” sex. Using the phrase “because of” meant applying the traditional standard of “but for” causation.  Under this test, discrimination is proven when a particular outcome would not have occurred “but for” the purported causation—here, sex. Applying this test requires changing one thing at a time to see if the outcome changes. If it does, but-for cause is proven. The Court elaborated that it does not matter if other causes existed because “[s]o long as the plaintiff’s sex was one but-for cause of the decision, that is enough to trigger the law.”

That analysis led to the interpretive conclusion that “an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” Put succinctly, if changing the employee’s sex, while keeping all other facts the same, would yield a different decision by the employer, then the employer’s actions constitute a violation of Title VII.

The Court held that Title VII prohibits discrimination on the basis of homosexuality or transgender status because both are inextricably linked with the employee’s sex. To demonstrate this point, the Court used the example of an employer with two identical employees. Both are attracted to men. If the employer fires a male employee for being attracted to men, but does not make the same decision with respect to the female employee, the employer necessarily has discriminated because of sex by firing the male employee for actions it tolerated in the female employee. The same is true for transgender employees: an adverse employment decision based on transgender status is tantamount to punishing the employee for traits tolerated in another employee. Since sexual orientation or transgender status cannot be separated from sex, Title VII protects those employees from discrimination. The majority opinion acknowledged that Congress, in adopting Title VII more than 50 years ago, did not intend to prohibit discrimination on the bases of sexual orientation or transgender status; but the majority asserted that legislative intent cannot trump the plain meaning of the statutory text.

The Court warned there could be exceptions to its ruling. It specifically noted its decision applies only to discrimination because of sex in the Title VII context. For instance, the Court acknowledged there could be conflict between the freedom to exercise religion and Title VII. Also, other statutes might supersede Title VII. This acknowledgement almost guarantees future litigation to determine what, if any, exceptions may exist and to define their contours.

The Bostock decision affirms how the Seventh Circuit Court of Appeals had been interpreting discrimination because of sex. In Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 340 (7th Cir. 2017), the Seventh Circuit used reasoning similar to that in Bostock to find that discrimination based on sexual orientation is sex discrimination.  Additionally, the Seventh Circuit held in Whitaker By Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017), that Title IX’s prohibition on educational institutions discriminating based on sex encompassed transgender status. Although the case did not apply to employment discrimination, the Seventh Circuit applied an analysis identical to that in Bostock: differential treatment because of transgender status punished a student for not conforming to gender stereotypes. Thus, although Bostock was a historic decision, it affirmed how the law was already being applied by federal courts in Wisconsin.

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