In Bostock, the Supreme Court considered three separate matters:  Bostock, on appeal from the Eleventh Circuit; Zalda v. Altitude Express Inc., on appeal from the Second Circuit; EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., on appeal from the Sixth Circuit.  The Plaintiff in Bostock was terminated after 10 years of employment when he began participating in a gay recreational softball league.  The plaintiff in Zalda was terminated days after revealing to his employer that he was gay.  The plaintiff in EEOC v. R.G. & G.R. Harris Funeral Homes presented as a male at the beginning of her employment, but was terminated after six years of employment when she notified her employer that upon returning from a scheduled vacation, she intended to “live and work full-time as a woman.”  In all three cases, the employers conceded that the reason for termination was the employee’s sexual orientation or gender identity.
The Court recited that its task was to determine the “ordinary public meaning” of Title VII’s language prohibiting an “employer to fail or refuse to hire or discharge any individual or otherwise to discriminate against an individual with respected to his compensation, terms conditions or privileges of employment, because of such individual’s…. sex.”  42 U.S.C. § 2000e-2(a)(1). In doing so, the Court spent considerable time on a discussion of the fact that Title VII does not protect groups or classes of employees, and instead protects employees.  

The Court parsed several of the terms of the statute, including the terms “because of”, “sex” and “discrimination” and held that Title VII’s language provides that “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex.”   The Court then found that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  Specifically, the Court reasoned that when, for example, an employer terminated a gay male employee because he is attracted to males, but would not fire a female employee for the same preference, this is termination “because of” sex.  It is irrelevant that there were other reasons for the termination, because the law requires that if any one reasons for discrimination is sex, that is enough to state a claim for violation of Title VII.    In this way, the court dismissed the employer’s argument that the reason for the termination was the employee’s identification as homosexual or transgender, unrelated to their actual gender.  The court instead found that “homosexuality and transgender status are inextricably bound up with sex.”  

The Court’s ruling relies on rulings in three previous Supreme Court cases finding that it was illegal to terminate a woman because she has small children, but not a man,  Phillips v. Martin Marietta  Corp., 400 U.S. 542 (1971); that it was illegal to require women to make higher pension fund contributions than men, Los Angeles Dept. of Water and Power v Manhart, 435 U.S. 702 (1978); and that it was illegal to permit sexual harassment of a male employee by other male employees, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).  In all of these cases, the employer proffered reasons for their actions, unrelated to sex, but the Court found that at least one reason for the employer’s decision was “because of” the employee’s sex.  

The Court rejected several of the employers’ arguments relating to the intent of the 1964 Congress that passed Title VII.  The Court rejected that Title VII does not apply to sexual orientation or gender identity because, the employers argue,  in 1964, the definition of discrimination on the basis of sex would not have included those concepts.  The Court also rejected the notion that Title VII does not apply to homosexuality and transgender status because those terms are not specifically included in the list of protected characteristics.  The Court instead insisted that discrimination on the basis of those characteristics necessarily entails discrimination based on sex.  Finally, the Court rejected the notion that Title VII does not apply because Congress did not anticipate this broad of a read of the statute in enacting Title VII.  The Court noted that whether a specific application was anticipated is irrelevant, as is whether the statue would apply to groups that were politically unpopular at the time of enactment.  

Justice Alito’s dissent takes the majority to task for its text-based argument, positing that the opinion is anything but, and that the majority’s opinion is policy-making.  Justice  Kavanagh similarly opines that the Court improperly took over the role of Congress in expanding the reach of Title VII.  

The Supreme Court’s historic ruling requires employers to ensure that its policies and procedures include protections for homosexual and transgender employees.   While some local and state laws already provide these protections, the Supreme Court’s decision does call for an evaluation of employer compliance.  Employee manuals and handbooks must contain the appropriate language to prohibit discrimination on the basis of homosexuality or transgender status, and must provide a complaint procedure for impacted employees.  Hiring practices, including applications and interview procedures, must be “blind” to these two categories, as is the case with age or disability.  Employers should consider training on these topics, and should evaluate the workplace for behaviors and cultural issues that may have been ignored until now.  
Whether Bostock is viewed as a plain text reading of Title VII or a broad rewriting of its language, as the dissents argue, it marks a transformation in federal law that should translate immediately to the workplace, and serve to protect homosexual and transgender employees.

Patricia Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. For advice on employment law issues relating to the COVID-19 crisis, or any employment law matters, contact Patricia Collins, 215.230.7500 ext. 126, or visit www.ammlaw.com.