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Professional Growth

After Bostock: Exploring Discrimination Involving Sexual Orientation and Gender Identity

May 24, 2024

By Richard Blaustein

Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, or national origin. But until 2020, when the U.S. Supreme Court decided the landmark case Bostock v. Clayton County, Georgia, it was not clear that “sex” extends to sexual orientation and gender identity.

“The Supreme Court had no trouble believing that sexual orientation and gender identity are inherently connected to [one’s] sex, so discriminating against people on that basis is exactly the same as discriminating on the basis of sex, and that’s been unlawful for 60 years,” said Katz Banks Kumin LLP partner Carolyn Wheeler, who presented a CLE program on sex-based discrimination at the D.C. Bar on May 16.

During the webinar, Wheeler explained gender-related antidiscrimination jurisprudence before Bostock, as well as questions that Bostock left open. She began with earlier Title VII cases that linked sex discrimination with harassment and gender stereotyping. Wheeler mentioned the 1989 case Price Waterhouse v. Hopkins, in which Ann Hopkins was denied partnership because partners in the company felt she comported herself in an unfeminine manner.

Wheeler explained that one resulting change in law is “the Supreme Court saying that discrimination on the basis of those kinds of stereotypic views of how women ought to look or act and holding them to a standard that’s different from what you would expect from men is evidence of sex discrimination.”

The idea of stereotyping as discrimination was also an issue in Baldwin v. Foxx (2015), where the U.S. Equal Employment Opportunity Commission wrote in its ruling that “[d]iscrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.”

Nonetheless, before 2017, courts “had held that Title VII does not prohibit discrimination because of sexual orientation — that the meaning of sex simply does not include sexual orientation,” Wheeler said. That year, the Seventh Circuit was the first to find Title VII sex discrimination on the basis of sexual orientation in Hively v. Ivy Tech Community College of Indiana.

Two years later, the U.S. Supreme Court heard arguments in Bostock, involving a county child welfare advocate who was fired from his job when his employer discovered he participated in a gay softball league. Bostock was conjoined with two other cases: Altitude Express v. Zarda (a gay flight instructor claimed he was fired for his sexual orientation) and R. G. & G. R. Harris Funeral Homes v. Equal Employment Opportunity Commission (an employee was terminated after revealing they were transitioning from male to female).

Explaining the “but-for” causation analysis as applied to a Title VII case, Justice Gorsuch, who wrote the Court’s decision, said that “Title VII’s ‘because of’ test incorporates the ‘simple’ and ‘traditional’ standard of but-for causation … That form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause.”

“When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law,” Gorsuch wrote.

Additionally, while defining sex as a biological characteristic, Gorsuch said that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The justice expounded:

[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Wheeler pointed out that Bostock has implications outside of employment, such as health care, housing, and education. However, the Court’s opinion did not address various religion-based issues such as protections under the First Amendment, Religious Freedom Restoration Act, and Title VII.

Conflicts between religious expression assertions and Title VII anti-discrimination understandings for sexual orientation and identity are especially active because of Title VII’s exemption for religious hiring — that is, a religious institution is allowed to give employment preference to adherents of the same religion. There is also a Supreme Court-recognized ministerial exemption based on the First Amendment that allows religious entities to control their own employment decisions.

The question of who qualifies as a minister creates a gray zone. In Our Lady of Guadalupe School v. Morrissey-Berru (2020), the Court decided that a teacher who sued the school for age discrimination when she was fired did perform ministerial functions. The Court indicated that employees who are implementing the religious mission of their organization can be considered ministers.

The exemption is being claimed in an expansive way, according to Wheeler. “So, the question [is], who else is a minister in these entities? In churches it is obvious, but then we have church schools and … we have publishing houses that publish religious literature and missionary organizations,” Wheeler said in an interview with the D.C. Bar.

Wheeler also mentioned state attorneys general who are actively challenging the Biden administration’s position on protecting the rights of LBGTQ individuals. It is “volatile area of the law,” Wheeler said, noting school-based conflicts involving pronoun use, gender-neutral bathrooms, and dress codes — issues that overlap with Title VII discrimination understandings.

“We want to know what these issues are and why [they’re] so divisive,” Wheeler said. “In many ways you would think [Bostock is] kind of unexceptional … someone who is doing a good job should not be fired because he is gay. But it has spawned all this angst and legislative activity and opposition to government regulation.”