In a landmark decision, the U.S. Supreme Court ruled on Jun 15, 2020 that federal antidiscrimination law bars employers from firing an employee because of sexual orientation, gender identity, or gender expression. New York City’s employment discrimination law specifically includes these as protected categories, but Title VII of the Civil Rights Act of 1964 only covers discrimination on the basis of sex and a few other factors. The Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity or expression. The majority opinion, written by Justice Gorsuch, applies textual analysis to reach this conclusion.
Sex Discrimination Under Title VII
Title VII’s provision regarding sex discrimination in employment has an unusual history. The statutes other titles did not originally include any mention of sex discrimination. The member of the House of Representatives who introduced the amendment adding sex to Title VII’s list of protected categories reportedly did so “in a spirit of satire and ironic cajolery.” The amendment became part of the final statute, and remains a critically important tool in protecting people’s rights.
Since 1964, the Supreme Court has expanded the meaning of sex discrimination to include a rather wide range of acts. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), for example, the court held that sexual harassment constitutes sex discrimination under Title VII. Justice Gorsuch’s opinion in Bostock cites three cases that built on Title VII’s concept of sex discrimination:
– Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971): A policy excluding mothers of young children from consideration for employment violated Title VII.
– Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978): A company violated Title VII when it required female employees to make larger pension contributions than male employees.
– Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998): Sexual harassment between members of the same sex can be actionable under Title VII.
The Bostock opinion cites another important Title VII decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), but does not rely on it. Hopkins held that discrimination based on “sex stereotyping,” meaning discrimination because an employee does not conform to stereotypical ideas about how a member of a particular gender should behave or appear, is sex discrimination under Title VII.
Discrimination on the Basis of Sex
Bostock involved three consolidated lawsuits in which the employers admitted to firing the plaintiffs because of their sexual orientation in two cases, and because of gender identity and expression in the other. In his opinion, Gorsuch concludes that an employer who discriminates on the basis of these factors is discriminating because of sex.
He offers an example of two employees who are both attracted to men, one of whom is male and one of whom is female. Firing the male employee because of their sexual orientation means firing him “ for traits or actions [the employer] tolerates in his female colleague.” Similarly, an employer discriminates on the basis of sex when it tolerates female traits in someone who was assigned female at birth, while firing someone expressing those traits who was assigned male at birth.
Phillips & Associates’ skilled and knowledgeable employment discrimination attorneys represent New York City employees who have experienced discrimination on the basis of gender identity and gender expression, helping them assert claims under city, state, and now federal law. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to discuss your case.