On June 15, 2020, the Supreme Court of the United States (SCOTUS) delivered a monumental decision for equal employment opportunity in our country, resolving a legal uncertainty haunting the LGBTQ community since the enactment of Title VII of the Civil Rights Act (1964). The result? SCOTUS made clear that Title VII prohibits employers from discriminating against individuals because of gender identity or sexual orientation. As the public engages in ongoing and collective pleas for equality and social justice across the nation, the time was ripe for this outcome.
Why Was This an Uncertainty?
Even before this decision, some state laws, federal circuits, and the Equal Employment Opportunity Commission already agreed with the result, but other states and federal circuits disagreed. This is apparent in the procedural posture of the case at hand. Specifically, in Bostock v. Clayton (2020), SCOTUS joined three separate cases from distinct circuits in the U.S. Court of Appeals: the 2nd, 6th, and 11th Circuits. At the appellate level, the 2nd and 6th Circuits held that the prohibition against sex discrimination also prohibited discrimination on sexual orientation and gender identity, respectively. On the other hand, the 11th Circuit held that Title VII did not prohibit discrimination based on sexual orientation.
This means that the courts would apply the law differently depending upon your region or jurisdiction. If, for example, you were a homosexual person in the 11th Circuit, which includes Alabama, Florida, and Georgia, you would not receive protection in the federal courts against employment discrimination due to your sexual orientation. And that was the case despite the EEOC’s stance. However, if you were in the 2nd Circuit, which includes Connecticut, New York, and Vermont, you would have such protection. Finally, in other circuits where this issue had not yet been decided, this protection was uncertain and not guaranteed. This piecemeal protection was clearly inadequate for our nation to achieve equality and unity. Hence, the Bostock (2020) decision resolved this dispute for the entire country in favor of protection for gender identity and sexual orientation.
Analysis of the Bostock (2020) Majority’s Reasoning
What’s most informative about this landmark opinion is, not the result, but how SCOTUS arrived at their decision. Adopting, for the sake of argument, the parties’ narrowest definition of “sex,” Justice Gorsuch reasoned that any difference in treatment based on gender identity or sexual orientation necessarily involves sex discrimination. Specifically, the Court examined the applicable definition of “sex,” interpreted “because of,” and unpacked the meaning of “discriminate,” all from Title VII’s statutory language.
Definition of ‘Sex’
In Bostock (2020), the Court explained that influential statutory terms must be interpreted in light of their plain meaning at the time of enactment, which was 1964. The employers contended that the term “sex” at that time, meant only the biological reproductive status of an individual. The employees countered that the term more broadly referred also to norms concerning gender identity and sexual orientation. For sake of argument, the Bostock (2020) Court adopted the employers’ definition. To the untrained eye, this seems as though the Court attempted to stack the cards against the employees. To the contrary, this approach helps ensure the outcome is more resistant to counterarguments. If a desirable result is still reached based on reasoning that concedes the opposition’s main assumptions, there are fewer factors the opposition can attempt to unravel.
Interpreting “Because of” Sex
SCOTUS further reasoned that the phrase “because of” incorporates a simple test of causation, known as but-for causation. The way this works is that, if you take consideration of sex out of the scenario, and the employment outcome changes, then sex was a but-for cause. In other words, but for the individual’s sex, discrimination would not have occurred. As the Bostock (2020) Court explained, the implication is that sex need not be the only, or even the primary, motivating factor in the employment decision at issue. If sex was a factor at all, the outcome was “because of” sex in accordance with Title VII. In addition, this reasoning takes away any defense grounded in the fact that some other permissible reason was also at play in causing the decision.
Applying this approach to gender identity and sexual orientation, the majority illustrated that it is impossible to consider either without considering sex. For example, a person is considered to be homosexual only because their sex is the same as the sex to which they are attracted. If you take a homosexual male and a heterosexual female, they both are, by definition, attracted to males. However, an employer with a policy to fire homosexual people would only fire the male but tolerate the same behavior (i.e., sexual attraction to males) by the female. Thus, the individual’s own sex is a but-for cause, along with the individual’s sexual orientation. The same reasoning also applies to gender identity. Each concept is defined in terms dependent upon the individual’s sex.
Meaning of “Discriminate”
The Court further demonstrated that, in the context of Title VII, “discriminate” means to treat an “individual worse than others who are similarly situated” (emphasis added). SCOTUS interpreted “individual” here to essentially rule out a defense that the bottom-line impact on males and females as a class was equal. In other words, for example, it is of little significance to a defense that an employer fires both male and female homosexual people equally based on sexual orientation. The Bostock (2020) Court showed, instead of preventing liability, this would constitute a double violation of Title VII.
Practical Implications
The most obvious implication that follows from this recent SCOTUS decision is that employers nationwide cannot intentionally discriminate against individuals based on their gender identity or sexual orientation. In other words, employers should not even consider gender identity or sexual orientation in making employment decisions. Although the Bostock (2020) case applied only to firing, there is no reason to suspect the analysis would not generalize to other employment practices, such as hiring.
A more nuanced implication is that employers should not only monitor treatment of males and females as a class, but also differential treatment of individuals within such classes. Based on the Court’s interpretation of “discriminate” just mentioned, tracking only how females and males are treated collectively will likely miss problems when gender identity or sexual orientation discrimination is applied to both sexes.
Because the Bostock (2020) case involved only intentional discrimination, or disparate treatment, it is not yet perfectly clear how this applies in the context of unintentional discrimination, or disparate impact. Nonetheless, one thing is certain: This decision lays the groundwork for gender identity and sexual orientation protection in unintentional adverse employment outcomes as well. Although intentional discrimination claims stem from Section 703 (a)(1) of Title VII, unintentional discrimination suits stem from Section 703 (a)(2). A side-by-side comparison of the language of each provision reveals that the only factor from the above analysis that may not have a direct application to unintentional discrimination is the reasoning relevant to the meaning of “discriminate.” The reason is that this word is not used in Section 703 (a)(2). Instead, it deems it unlawful for an employer to “adversely affect [a person’s] status as an employee.” However, it does analogously use both “sex” and “because of.” In sum, it would be reasonable to expect a court to find an adverse effect based on gender identity and sexual orientation a violation of Title VII. It is less clear whether the adverse impact must only be on one sex at a time to support a legal action, which would be distinguished from the individual focus of “discriminate” in terms of intentional actions. Nonetheless, even though Section 703 (a)(2) does not use the term, “discriminate,” it does indicate it is meant to also protect individuals:
It shall be an unlawful employment practice for an employer — to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. (emphasis added)
Furthermore, it is important to acknowledge SCOTUS cannot and did not create an additional protected class. Such an improvement would require congressional action. Rather, the Court demonstrated that gender identity or sexual orientation discrimination is a specific type of sex discrimination. In other words, a separate protected class is not needed because the protection is, or should have been, already there. Yet, the reasoning that allowed the Court to orient gender identity and sexual orientation within sex points to many other potential forms of sex discrimination based on combining sex as a but-for cause with other potential factors. Considering Justice Gorsuch’s example, firing a woman because she is a Yankees fan while allowing men to remain Yankees fans is still discrimination because of sex. It is analogous to firing a woman because she is attracted to women but not men who are attracted to women. Therefore, the proactive employer should be creative in monitoring how sex, or any other protected class, is combined with other seemingly insignificant factors in driving employment decisions.
Societal Implications
The fact that this opinion was a 6-3 decision and not unanimous — and that a circuit split even existed on the issue — reveals an uncomfortable truth about our nation’s legal system: There is much more work left to do in terms of ferreting out social inequality. Justice Gorsuch showed compellingly that the protection for gender identity and sexual orientation has been there since the enactment of Title VII. So, any previous differential protection highlights the role of subjective biases in judicial interpretation.
The Bostock (2020) majority provides many other examples of how the proper legal reasoning only meets resistance when it is applied to protect groups that are politically disfavored by some, such as a provision in the past that was applied to postal workers without opposition but was resisted when applied to prisoners. There are also examples within Title VII litigation itself. For instance, as the court also pointed out, no one thought twice when sex discrimination was applied to prohibit sexual harassment. Then, using the same reasoning, this current case applied it against vigorous resistance to protect individuals who are homosexual and those who are transgendered. Just as minority groups should not have to endure unequal employment opportunities, so too should minority groups not have to endure unequal legal protection. In fact, the U.S. Constitution calls for equal protection of all citizens.
From the beginning, Hogan has consistently advocated for fairness in employment practices and personnel decisions. The Bostock (2020) ruling that employers cannot discriminate on gender identity or sexual orientation is in line with our commitment to fairness in hiring practices. As a result, we will confirm our assessments impact such demographics fairly as we continue to ensure our assessments are fair to all individuals regardless of gender identity or sexual orientation. Based on the available evidence, there is no reason to suspect personality assessments produce differential scores by gender identity or sexual orientation.
[1]Disclaimer: Although the author is a licensed attorney, as an employee of Hogan Assessment Systems, neither he, within the scope of such employment, nor Hogan engages in the practice of law. Therefore, this document is not intended as legal advice but is instead a general interpretation of recent developments in the case law useful for broad audiences. Readers needing consultation on a specific individual legal issue should obtain independent legal counsel.
