The Supreme Court has ruled 6-3 that discrimination on the basis of sexual orientation and/or gender identity necessarily violates Title VII’s prohibition of discrimination on the basis of sex.
Note that the Court did not find that Title VII “prohibits” LGBTQ+ discrimination (in the traditional sense) as most headlines would lead you to believe—the decision does not render an opinion about the legality of LGBTQ+ discrimination at all. Rather, the Court held that making employment decisions based on LGBTQ+ status, whether that practice is legal or not, requires the employer to commit illegal sex discrimination.
This is a significant deviation from the EEOC’s position that sex discrimination and LGBTQ+ discrimination are effectively the same thing. The immediate practical effect may be the same, but word choice in Supreme Court opinions is never unimportant.
While the decision directly impacts the application of employers’ non-discrimination policies, it should not require any immediate action in terms of updating the text of those policies or other materials unless they expressly exclude sexual orientation and/or gender identity in their current forms. Employers do not have to add sexual orientation or gender identity to the list of characteristics protected by Title VII the way federal contractors did with relation to characteristics protected by Executive Order 11246.
Title VII of the Civil Rights Act expressly prohibits private employers with fifteen or more employees from discriminating on the basis of race, color, religion, sex, or national origin. Since its passage in 1964, “sex discrimination” has been largely interpreted to mean making adverse employment decisions based on the fact that someone is a man or because they are a woman.
In 2014, President Obama signed Executive Order 13672 adding “sexual orientation” and “gender identity” to the list of characteristics protected from discrimination under Executive Order 11247 (enforced by the Department of Labor) prohibiting employment discrimination by federal contractors. Soon after in 2015, the Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces Title VII of the Civil Rights Act, began enforcing Title VII under the interpretation that sexual orientation discrimination is prohibited as a form of sex discrimination. The Supreme Court’s decision on the matter, while having the same practical effect, is rooted in a slightly different premise than either of the preceding two.
The Supreme Court did not add sexual orientation or gender identity to the list of protected characteristics enumerated in Title VII (that is the purview of Congress, not the Judiciary). Nor did the Court adopt the EEOC’s interpretation that LBGTQ+ discrimination “is” sex discrimination under Title VII. In fact, the Court arguably holds it is not, because it views sex discrimination and LGBTQ+ discrimination as separate and distinct concepts. The Court’s decision does not even hinge on the idea that LGBTQ+ discrimination has the “effect of” sex discrimination.
Instead the Court ruled that LGBTQ+ discrimination is not possible without engaging in already-prohibited sex discrimination. In other words, LGBTQ+ discrimination is not “prohibited” by Title VII in the sense that sexual orientation or gender identity are protected characteristics under that law, but the path to LGBTQ+ discrimination (whether it is right or wrong, legal or illegal) necessarily goes through a door clearly marked “sex discrimination” that Title VII intends remain shut. While to many this may appear to be a difference without a distinction, as a legal matter it is important.
The Supreme Court’s ruling in Bostyock v. Clayton County, Georgia does not “read-in” LGBTQ+ discrimination to Title VII. Such judicial opinions are always susceptible to accusations of judicial activism and overreach. Rather, the Court finds that the plain text of the law itself is clear and unambiguous in its prohibition against protected characteristics like sex entering into employment decisions. And in the cases at bar, the complained-of conduct, while not expressly prohibited by Title VII, is simply not possible without sex becoming a factor in the employment decision, which is expressly prohibited.
The Court provides several illustrative examples in response to various arguments mounted by defense counsel, but the one that most illuminates the central premise may be this:
Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.
Note that the above example presumes that a policy of firing any employee known to be homosexual does not, in and of itself, violate Title VII. It is the application of such a policy that becomes legally problematic because it is impossible to implement without taking an individual’s sex into account, and that is clearly and unambiguously prohibited. In other words, LGBTQ+ protection is a natural consequence of the way Title VII is written.
As the Court notes, Title VII does not prohibit discrimination against certain people or groups of people. It prohibits employers from taking into consideration certain characteristics when making employment decisions—characteristics that everyone possesses.
I cannot fire you for being a woman, nor can I fire you for being a man, because Title VII does not prohibit discrimination against women, it prohibits discrimination on the basis of sex. I cannot fire you for being Black, or for being any other person of color, nor can I fire you for being White, because Title VII does not prohibit discrimination against “minorities,” it prohibits discrimination on the basis of race, no matter what that race may be. For what is viewed as such an enormous and complex law, it is actually relatively simple, and it is very broad.
The simplicity and breadth of the law might lead to consequences that are surprising to some, but the Court says such surprise is: a) unwarranted because the law is clear on its face and the conclusion requires no legal interpretive gymnastics; and b) not a basis for applying the law differently in different circumstances. These are solid and important principles, regardless of any personal opinion one might have of the specific outcome. If Congress is dissatisfied with particular consequences of a broadly written statute, Congress can amend the law and narrow its scope.
In practical terms, Executive Order 11246 for federal contractors and Title VII for employers broadly are now effectively re-aligned. LGBTQ+ discrimination is effectively prohibited by both, though they take different paths to get there.
For the lawyers reading this, and anyone else interested (warning: this might get a little “legalese-ey”), much speculation has already emerged regarding the potential scope of this decision beyond the Title VII context. Some legal scholars have opined that the concept is “plug-and-play” and directly applicable to any law that prohibits sex discrimination. But I urge caution there. The Title VII context is important.
True, if the Court had read-in to Title VII sexual orientation and gender identity as protected characteristics under that law, the opinion might be more strictly limited to the Title VII context right out of the gate. But any analysis of whether and to what extent the basis for the Court’s decision in Bostock applies to, say, housing discrimination, depends on whether or not that law: a) prohibits sex discrimination; b) does so by prohibiting sex as a decision-making factor across the board; and c) applies a but-for standard of causation. If those three elements are not present, Bostock is a non-starter.
Some speculation has also already surfaced regarding the extent to which the Court’s decision might impact the “religious exemption” under Title VII (as distinct from the “ministerial exception” which is a much broader exception but much more limited in scope and likely not affected). The religious exemption allows religious organizations to discriminate on the basis of one of the five enumerated protected characteristics—religion. But longstanding precedent has limited that exemption when it involves discrimination based on any of the other four protected characteristics—race, color, sex, and national origin.
For example, a religious organization might be allowed to restrict hiring to members of the same faith, but would not be allowed to pay men and women differently for the same work or to refuse to hire people of different races or nationalities, even if those things are claimed to be tied to central tenets of the religion in question.
But the analysis necessarily involves identifying whether and to what extent granting the religious exemption runs afoul of the law’s other enumerated protections. The Court’s decision in Bostock is clear that LGBTQ+ status is not a protected characteristic under Title VII. LGBTQ+ discrimination is a half-step removed from Title VII’s protected characteristics, but only a half-step. If the religious exemption continues to be applied according to existing law and precedent, that may in fact be a difference without a distinction.