Bostock v. Clayton County and Implications for Title VII Litigation

The United States Supreme Court held in Bostock v. Clayton County, Georgia on June 15 that the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1964) protects gay and transgender workers from workplace discrimination. This issue came before the Court after Gerald Bostock’s employer — Clayton County, Georgia — fired him because he decided to play in a gay softball league. After the United States Equal Employment Opportunity Commission (“EEOC”) issued Bostock a “right to sue letter,” he filed a lawsuit in the Northern District of Georgia, alleging that Clayton County violated Title VII of the Civil Rights Act (“Title VII”) when it fired him for being gay. The district court and Eleventh Circuit held that Title VII does not protect employees against discrimination based on sexual orientation. Bostock petitioned the United States Supreme Court, and the Court consolidated Bostock’s case with two other cases from other districts. Justice Neil M. Gorsuch wrote for the majority in the historic 6-to-3 opinion, holding that “…[t]he answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids …[a]n employer who fires an individual merely for being gay or transgender defies the law.”

Justices Samuel Alito and Clarence Thomas dissented and accused the majority of hiding behind the “textualist school of statutory interpretation.” Specifically, the dissent wrote, “[t]he Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

Courts and government agencies alike have long disagreed about Title VII’s applicability to and protection of employees who identify as gay or transgender. Historically, courts interpreted Title VII’s prohibitions on discrimination in employment based on an individual’s race, color, religion, sex, or national origin as extending only to an individual’s gender assigned at birth. That started to change in 1989 when the United States Supreme Court held that discrimination based on sex stereotyping is unlawful sex discrimination under Title VII.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). This case involved a senior manager in a professional accounting partnership who claimed that the partnership discriminated against her under Title VII on the basis of sex. The Court stated that “[w]e are beyond the days when an employer could evaluate employees by assuming or insisting that they...