On June 15, 2020—the 5th anniversary of the landmark Obergefell v. Hodges decision recognizing a constitutionally-protected right of same-sex marriage[1] — the U.S. Supreme Court expanded sex-based discrimination to encompass sexual orientation and gender identity for purposes of employment discrimination protection. In Bostock v. Clayton County, the Court determined that when an employer fires an employee because of gender identity or sexual orientation, the employer is effectively firing the person for traits and qualities that would not have been an issue if they were members of the opposite sex. Thus, the Court held in a 6-3 ruling, discrimination on the basis of gender identity or sexual orientation is discrimination “because of sex” and therefore presents a valid employment claim under Title VII of the Civil Rights Act.
While the decision is only days old, Bostock promises to significantly alter the landscape of U.S. employment law in several ways. First, through Justice Gorsuch’s majority opinion, Bostock judicially resolves a congressional impasse regarding whether to include sexual orientation or gender identity (“SOGI”) protections in Title VII’s express prohibition of “sex” discrimination,[2] and so significantly expands the applicability of the Civil Rights Act. Second, Bostock demonstrates a judicially active interpretive shift within the Court. Third, while the Bostock ruling resolves a conflict among the lower courts, lower courts had uniformly rejected such expansion of Title VII protections until only recently. Fourth, the decision may create significant challenges for faith-based employers with differing religious standards regarding sexuality, for employers in general regarding the application of this expanded definition of “sex”, and for sports, housing, and other areas that typically separate activities based on male/female distinctions. Bostock thus may result in new legislative initiatives and additional litigation to address these significant implications.
This article summarizes the Court’s majority and dissenting opinions, provides several observations, and then discusses Bostock’s application such as to religious employers and other nonprofit organizations.
Justice Gorsuch’s Majority Opinion
Bostock v. Clayton County is a consolidation of three cases that reached the Supreme Court after appeal from three separate U.S. Circuit Courts, all involving Title VII sex discrimination claims by homosexual or transgender employees.[3] The Court resolved the arguments in all three cases in Bostock, declaring that employers violate Title VII’s sexual discrimination provision if they engage in adverse employment actions against homosexual or transgender employees. In each of these cases, employers conceded that their employees’ sexual orientation or gender identity was a factor in their firing but denied that such firings constituted unlawful sex discrimination under Title VII.[4] In the majority opinion authored by Justice Gorsuch[5], a 6-3 majority of the Court disagreed and effectively included SOGI protections in Title VII.
The Court declared that the answer to this controversial debate has actually been hidden in plain sight all along — to discriminate against a homosexual or transgender person is to discriminate against them “because of sex”. An example adapted from Justice Gorsuch’s opinion illustrates the Court’s logic. If Bob and Sally show up at a Christmas party with boyfriends and Bob is subsequently fired for doing so but Sally is not, that constitutes sex discrimination. If Bob and Sally show up at a Christmas party in dresses and Bob is subsequently fired for doing so but Sally is not, that would also amount to sex discrimination. But for Bob not satisfying traditional gender roles in both cases, he would not have been fired or, as Justice Gorsuch stated, “[s]ex plays a necessary and undisguisable role in the [firing] decision, exactly what Title VII forbids." Therefore, such adverse employer action constitutes discrimination “because of sex.” Notably, the Court’s reasoning is similar to the recent Seventh Circuit decision in Hively v. Ivy Tech Community College.[6]
The Court conceded that the drafters of the Civil Rights Act of 1964 would not have considered sex discrimination to encompass SOGI protections when the legislation was enacted. However, the Court asserted that the statute should not be interpreted so narrowly to exclude potential categories of sex discrimination of which the drafters may not have been aware. As Justice Gorsuch states, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” For example, the drafters probably did not have sexual discrimination against men in their minds when they wrote and voted on the law. However, the Court later held that Title VII protects against such discrimination, as recognized in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (Title VII prohibits against providing greater pregnancy-related health insurance benefits to female employees than to spouses of male employees), and Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998) (applying Title VII’s protections to male-on-male sexual harassment)).
Similarly, the Court argued that its previous rulings have broadly interpreted Title VII to protect against discriminatory actions that are exclusively focused on one’s status as a male or female, such as a blanket hiring preference for male or female employees. Previous decisions have also held that Title VII protects against sexual harassment, even though sexual harassment is “conceptually distinct from sex discrimination.” (E.g., Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), Oncale v. Sundowner Offshore Services, Inc). Also, the Court has previously held that discrimination against women who have children constitutes sex discrimination under Title VII. (E.g., Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971)). According to Justice Gorsuch, these cases illustrate the rule of interpretation that “when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”
Justice Alito’s Dissent
Justices Alito, Thomas, and Kavanaugh disagreed emphatically with the majority’s reasoning. Writing for himself and Justice Thomas, Justice Alito claimed that the “opinion of the Court flies a textualist flag” but is fundamentally an activist decision, overruling the will and intent of Congress. In particular, the Court effectively updates the Civil Rights Act of 1964 itself, such that it “better reflect[s] the current values of society.” Specifically, Justice Alito took issue with the precedent relied on by the Court, stating that each are explainable on their own terms without establishing the Court’s authority to “update” the meaning of laws passed by Congress.
To establish his point, Justice Alito referenced a discussion with the employees’ attorney during oral argument. Suppose an employer had a blanket policy of not hiring homosexuals or transgender individuals and implemented that policy without knowing an applicant’s sex. When asked if such a policy would be discrimination on the basis of sex, the employees’ attorney answered “no.” In other words, Justice Alito reasoned, to discriminate because of sex, an employer must actually know a person’s sex. Justice Alito also addressed the ordinary and public meaning of sex discrimination in 1964. Discrimination “because of sex”, as set forth in Title VII, does not include discrimination on the basis of sexual orientation, much less gender identity, which was “a concept that was essentially unknown to the public at that time.” Since “Title VII prohibits discrimination because of sex itself - not everything that is related to, based on, or defined with reference to, ‘sex’” - Justice Alito concluded that the majority’s opinion went beyond the proscriptions of the statute.
Justice Alito closed with an acknowledgement that the Court’s decision implicates over 100 federal statutes along with freedom of religion, freedom of speech, and personal privacy and safety issues. Likewise, the ruling will likely affect the constitutionality of sex-specific designations such as bathrooms, locker rooms, women’s sports, housing, employment by religious organizations, and healthcare (as more fully addressed below.) Instead of deferring to Congress to update the Federal Civil Rights Act of 1964 and thereby address these issues, courts likely will be faced with such issues through years of future litigation.
Justice Kavanaugh’s Dissent
Justice Kavanaugh’s dissent similarly focused on critiquing the Court’s textualist approach. Employing a “literalist” approach for interpreting sex discrimination “deprives the citizenry of fair notice of what the law is.” Instead, the Court should have determined the ordinary meaning (rather than the literal meaning) of the “discriminate because of sex” phrase as a whole in 1964 and then decided whether SOGI protections were encompassed within that definition. Under this approach, “[b]oth common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination.” Justice Kavanaugh further argued that the Court’s erroneous interpretation of sex discrimination seriously undermines the separation of powers between the branches, allowing the Court to substitute an overly literal reading of its own making for the meaning most likely intended by Congress. As such, the Court’s update of Title VII usurps Congress’ role in passing and amending laws.
Bostock’s Stretch – Textualism and Being “Inextricably Bound Up”
1. The Majority’s Understanding and Application of Textualism
Using what it considered to be its “textualist” approach toward statutory interpretation, the majority identified an inextricable connection, nexus, or link between the concepts of homosexuality, transgender status, and sex. The Court stated that “homosexuality and transgender status are inextricably bound up with sex” and that “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”
2. The Dissent’s Rejection of the Majority’s Textualism as Textualism
For the dissent, the majority’s inextricable binding up of sex with homosexuality and transgender status effectively amended the statutory text, “grafting onto Title VII some arbitrary line.” According to Justices Alito and Thomas, while Congress might have amended Title VII, to reflect the policy views of many people in 2020, the Court’s decision preempted any such action by Congress.
Justice Kavanaugh’s dissent added that neither courts nor individuals interpret words or phrases according to their strict literal meaning. Not that one does or should ignore literal meaning. But words and phrases are to be interpreted according to their ordinary and plain meaning. Taken absolutely literally, discrimination “because of sex” can mean a lot of things including discrimination because of a previous sexual crime, use of pornography, adultery, or promiscuity. However, that is not how one ordinarily interprets the phrase. For the dissent, the ordinary meaning of discrimination “because of sex” means discrimination because of one’s status as a male or female.
Whether the Court’s “inextricable binding” of sex with homosexuality and transgender status was properly a “textualist” approach or not, will be debated for years to come. Either the way, the Court has expanded the meaning of sexual discrimination beyond a strict, narrow reading (such as to include sexual harassment). As Justice Alito pointed out, the Court’s decision means that many of resulting issues—such as other federal laws and freedom of religion—will likely not be resolved though congressional compromise. Instead, extensive and expensive litigation likely will ensue, entailing case-by-case decision-making by individual judges (or panels thereof) to interpret just what “because of sex” means in various contexts.
Bostock’s Stretch – “Because of Sex” in Employment and Other Contexts
Bostock carries many practical implications for employers and others, particularly organizations that adhere to religious standards and hold religious beliefs against homosexuality and transgenderism as morally acceptable. While such religious views should be accorded respect and deference, as the Supreme Court recognized in its 2018 Masterpiece Cakeshop decision,[7] Bostock raises significant questions about whether and to what extent religious organizations may legitimately maintain such religious standards in terms of their employment practices. As noted in part by Justice Alito, these issues include the following.
- Faith-Based Organizations: Numerous issues await faith-based organizations that seek to hire individuals who embrace the organizations’ beliefs and practices, including religious principles on sexuality contrary to SOGI premises. Whether such faith-based organizations will have a legally protectible First Amendment free exercise right that safeguards their own hiring practices is unclear, even when hiring a certain individual conveys an objectionable message. The answer may well depend on the extent to which the organization is religious, both inwardly and outwardly. As Justice Alito pointed out, this issue is particularly acute for religious schools, such as the many church and parochial schools which often require teachers to sign and abide by a statement of belief and practice. Although the “ministerial exception” as recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012), provides some protection for religious workers,[8] the exception’s full scope is unclear.[9] The federal Religious Freedom Restoration Act and its state counterparts may also provide protection for organizations’ religious liberty interests. These statutes require a balancing of government interests against religious interests, and often provide greater protection for qualifying organizations. The availability of these exemptions again may depend on the extent of an employer’s religious nature, as well as the extent of governmental deference accorded to asserted religious liberty interests.
- Housing: The decision could affect colleges and universities that receive federal funds under Title IX and that provide student housing. Under the majority’s “because of sex” reasoning, it may become illegal for such institutions to refuse to house students of different biological sexes to the same dormitory room. Title IX has an exception for religious schools. However, that does not mean the scope of the exception will not be challenged. Similar challenges could be brought under the federal Fair Housing Act which allows single sex housing accommodations (such as women’s shelters and male-only rooming houses).
- First Amendment Freedoms of Speech and Religious Liberty. More generally, the Bostock decision carries a host of implications for the freedom of speech of employers, employees, and organizations who conceivably could be sued for improperly referring to or an unwillingness to recognize an employee’s chosen gender identity. How the constitutional rights of individuals and organizations may be restricted by the Court’s expanded definitions of Title VII sex discrimination remains to be seen, but they will undoubtedly be worked out in many specific situations and likely numerous lawsuits. At the very least, the Court’s decision may create a “chilling effect” on such speech, with resulting required organizational, legal, and procedural safeguards.
- Bathrooms and Locker Rooms. Will transgender individuals now have cognizable, valid legal claims to use the bathroom or locker room of their self-identified gender? By implication, will individuals of a different biological gender have standing or legal grounds to challenge any such claim, such as based on their own right to privacy or safety? Will courts take a distinct approach for “gender fluid” individuals who do not undergo a true gender transition, but choose to use the bathroom or locker room assigned to the sex with which they identify at a particular time? Similar arguments could be made to challenge secondary school dress codes which are generally different for boys and girls.
- Healthcare. Similar to the challenges to the Affordable Care Act regarding contraception coverage[10], employers may be confronted with transgender employees seeking to have sex reassignment surgery covered by employee provided health insurance plans or be confronted with a requirement to include such coverage in any plan they offer. Whether an employer could legally refuse to provide such coverage through an employer-provided health plan remains to be seen.
- What’s Next? Since the Court has now expanded the definition of discrimination “because of sex” to include discrimination because of sexual orientation and gender identity, can employers have any clarity regarding whether the definition will be further expanded, and if so, how far? For example, is hiring to expand gender diversity now illegal because it discriminates “because of sex”? The Court offers no answers, and it will be employers who pay the price through further litigation by non-hired employees.
- Legislation? The above questions may additionally give rise to future legislation, such as to carve out religious exemptions for employers and within other contexts. Many states and municipalities have provided religious exemptions within employment, housing, and other laws, but others have not.[11]
Bostock’s Stretch – Implications for Religious Organizations
Religious organizations, whether houses of worship or other nonprofits, may now face difficult challenges to the extent they adhere to religious doctrines about sexuality that conflict with the Bostock’s expanded Title VII protection for “sex.” Under First Amendment principles and many state laws, they may enjoy exemptions from Bostock’s otherwise applicable sex discrimination prohibitions. Notably, Title VII applies only to employers with at least fifteen employees, but many state and local laws apply to employers with as little as one employee.[12]
The following safeguards thus should help protect an organization’s First Amendment free exercise rights regarding such religious benefits and help mitigate against legal exposure.
- Clearly article the religious nature of the organization in its corporate purpose and mission statement.
- If the organization holds certain faith and doctrinal beliefs about sexuality, clearly articulate them utilizing religious references in a Statement of Faith or Beliefs in the organization’s governing documents.
- Maintain and disseminate an employee code of conduct that is transparent about these religious, doctrinal standards for permissible behavior.
- Make sure to clarify in job descriptions and job offer letters any religious qualifications, standards, and work expectations for the position. Identify positions as “ministerial” to the extent appropriate, particularly for the “ministerial exception” protection accorded under the Supreme Court’s Hosanna-Tabor decision. Other job descriptions may not be ministerial but may require “bona fide occupational qualifications” (BFOQ). BFOQs are important protections for employers that need to hire persons who comport with the organization’s beliefs and practices for certain employment positions (e.g., a hospital chaplain).
- Clearly articulate the organization’s religious mission in other respects and follow religious-based standards. For example, it is illegal to fire an employee for being pregnant. But if an organization maintains a clearly articulated and consistently followed employment code of conduct that includes adultery as a violation, firing an employee (whether male or female) for engaging in such adultery should be legally permissible based on significant First Amendment protections for religious beliefs about sexuality.
- Employees should be required to agree to the organization’s statement of faith and any specific religious standards, if these are essential aspects of their work activities for the employer. For example, a pregnancy resource center with a strong religious identity may require its employees to be Christian, to engage in Christian worship activities at work, and to share such Christian beliefs with clients or others who seek out the center’s charitable services.[13]
Parting Thoughts
Bostock brings sweeping change for employment discrimination cases and carries other significant implications. As the definition of “sex” is expanded beyond binary biological differentiation, such modification may weaken legal protections providing for fair competition, equal treatment, and safety protocols as between men and women. The decision also raises broader questions about the judiciary’s role in critical issues affecting our country’s well-being. Meanwhile in the trenches of nonprofit operations, organizations seeking to amend or refine their employment and other gender-related practices in Bostock’s wake thus should be aware of this shifting legal landscape and take appropriate steps to shape their practices in legally compliant ways.
[1] For background on Obergefell, see here.
[2] More specifically, Title VII prohibits discrimination on the basis of an individual’s race, color, religion, sex, national origin, age, or disability. 42 U.S.C. § 2000e-16.
[3] The other two cases are R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, appealed from the Sixth Circuit Court of Appeals, and Altitude Express, Inc. v. Zarda, appealed from the Second Circuit Court of Appeals.
[4] For more information on the background of these three cases, see here.
[5] Justice Gorsuch was joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, and Chief Justice Roberts.
[6] For more detailed information on the Hively case, see here.
[7] For more background on Masterpiece Cakeshop, see here.
[8] For more background on the ministerial exemption, see here. In Hosanna Tabor, a church-run school was afforded absolute protection from any scrutiny of its employment decisions concerning a “ministerial” employee – specifically, a teacher. She was therefore barred from raising any claim under the federal Americans with Disabilities Act, which otherwise would have applied. The Court declined to “adopt a rigid formula for deciding when an employee qualifies as a minister” but made it clear that “the ministerial exception is not limited to the head of a religious congregation.” This “ministerial exception” has been recognized for state law purposes as well, thereby protecting religious employers from discrimination, contract, and other liability related to its “ministers.”
[9] The court’s consideration of the scope of the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru should be forthcoming within the next two weeks.
[10] See Burwell v. Hobby Lobby, 573 U.S. 682 (2014).
[11] For example, the Illinois Human Rights Act (“IHRA”), which expressly includes sexual orientation and gender identity as a protected classification, defines the word “employer” as specifically excluding “any religious corporation, association, educational institution, [or] society . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, [or] society . . . of its activities.” See 775 ILCS 5/1-102 and 1-103(O-1). Churches and religious schools thus may be exempt from the IHRA.
[12] For example, the City of Chicago and Cook County, Illinois have ordinances covering employers with at least one employee, and with only narrow religious and BFOQ exemptions.
[13] For an example of how not to garner religious liberty protections in an employment context, see here. In this featured case, the employer was only minimally religious in nature and imposed no religious standards on the employee at issue, but fired him for having a same-sex partner. The employee won on summary judgment.
