Supreme Court Surprises The Public in LGBTQ Ruling: What is Sex Discrimination?
Jo Freeman: '
Eight months after the Supreme Court heard oral argument on the scope of the prohibition against sex discrimination in the 1964 Civil Rights Act, the conservative court reached a decision lauded by liberals all over the country. Chief Justice John Roberts and Justice Neil Gorsuch joined the four liberals to hold that an employer who fires an individual merely for being gay or transgender violates Title II of that Act. With this decision it answered the question raised in October on What Is Sex Discrimination?'
BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17 – 1618. Argued October 8, 2019 — Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33. (a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord ——————
*Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18– 107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit. 2 BOSTOCK v. CLAYTON COUNTY Syllabus with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups.
Editor's Note: (1) Read the rest of the ruling at:
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf; read Jo Freeman's 2019 article:
What is Sex Discrimination? That Was the Question Before the Supreme Court On October 8:
Several hundred people protested in front of the Supreme Court on October 8 as it heard oral argument on the issue of exactly what is sex discrimination in employment. At the end of the rally 132 people were arrested for blocking the street in planned civil disobedience.
"Sex" is one of the protected categories in Title VII of the 1964 Civil Rights Act, which prohibits discrimination in employment. At that time, same-sex relations were a crime in every state except Illinois. Transgender wasn’t even a word. Much has happened in 55 years.
The Court agreed to hear three cases on whether Title VII protects gay, lesbian and transgender employees after three Circuit Courts of Appeal made conflicting decisions.
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