The significance of the Supreme Court case Bostock v. Clayton County in 2020 is momentous. Few pieces of federal legislation rank in significance with the Civil Rights Act of 1964, in which Title VII outlawed discrimination in the workplace based on race, color, religion, sex, or national origin. In this case, the Supreme Court determined the ordinary public meaning of Title VII’s command that it’s “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 race, color, religion, sex, or national origin.” The Court finally answered a resounding no to whether an employer can fire someone simply for being homosexual or transgender.
These cases started the same way: an employer fired a long-time employee shortly after the employee revealed they were homosexual or transgender and allegedly for no reason other than their homosexuality or transgender status. Gerald Bostock worked in Clayton County, Georgia as a child welfare advocate, under whose leadership the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Soon after, influential community members allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. He was then fired for conduct “unbecoming” of a county employee. Donald Zarda worked as a skydiving instructor in New York for several seasons when he mentioned he was gay and was fired days later. Aimee Stephens worked at a funeral home in Garden City, Michigan. When she got the job, she presented as male. Two years into her service with the company, she began treatment through which clinicians diagnosed her with gender dysphoria and recommended she begin living as a woman. During her sixth year at the funeral home, Ms. Stephens wrote a letter to her employer, explaining that she planned to “live and work full-time as a woman” after returning from an upcoming vacation. The funeral home fired her before she left, explaining, “This will not work out.” Each employee brought suit under Title VII, alleging unlawful discrimination based on sex. During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens passed away. Still, their estates continued to press their causes for the benefit of their heirs. The Supreme Court granted certiorari to resolve at last the disagreement among the Courts of Appeals over the scope of Title VII’s protections for homosexual and transgender persons.
This case was an issue of statutory interpretation. The only statutorily protected characteristic at issue is “sex.” Appealing to roughly contemporaneous dictionaries, the employers argue that the term “sex” in 1964 referred to “status as either male or female as determined by reproductive biology.” Title VII prohibits employers from taking certain actions “because of” sex, and the Supreme Court has previously explained that “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’” When it comes to Title VII, a defendant cannot avoid liability just by citing some other factor that contributed to their challenged employment decision, so long as the plaintiff’s sex was one of the but-for causes of that decision, that’s enough to trigger the law.
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions they wouldn’t have questioned in members of different sex. Sex plays a crucial and undisguisable role in that decision, exactly what Title VII forbids. The statute’s message for this case is simple and momentous: an individual’s homosexuality or transgender status isn’t relevant to employment decisions because it’s impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. For example, an employer has two employees who are both attracted to men. In the employer’s mind, the employees are materially identical in all respects, except one is a man and the other is a woman. Suppose the employer fires the male employee for no reason other than the fact he is attracted to men. In that case, the employer discriminates against the male employee for traits or actions they tolerate in his female colleague. Put differently, the employer intentionally singles out an employee to fire based on the employee’s sex. Furthermore, an employer who fires a transgender person who identified as male at birth but now identifies as female and retains an otherwise identical employee who identified as female at birth and continues to identify as such, the employer intentionally punishes a person identified as male at birth for traits or actions they tolerate in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the firing decision.
In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire them. In Bostock v. Clayton County, the Supreme Court finally recognized a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law. The significance of the case was recognized in the dissent of Mandala v. NTT Data, Inc., stating how Title VII may be this century’s most important piece of remedial legislation, as it “struck a body blow to the race-based caste system that defined this country for centuries, and its promise of fair treatment has now thankfully been extended to the LGBT community” through Bostock v. Clayton County. Mandala v. NTT Data Inc., 988 F.3d 664, 672 (2d Cir. 2021).