Supreme Court rules 6-3 in Bostock v. Clayton County for LGBTQ workplace protections

by Robin Kemp

The United States Supreme Court has ruled 6-3 that lesbian, gay, bisexual, and transsexual employees are protected against job discrimination under Title VII of the 1964 Civil Rights Act, based on a case involving the former director of Clayton County CASA’s volunteer program, Gerald Bostock.

Bostock sued Clayton County, alleging wrongful termination on the basis of sex, because he is a gay man. The ruling addressed whether or not “sex” under Title VII of the Civil Rights Act applies to sexual orientation.

Writing for the majority, Justice Neil Gorsuch said, “In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being ho- mosexual or transgender fires that person for traits or ac- tions 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.”

Joining Gorsuch in the majority were Chief Justice John G. Roberts Jr., Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

Dissenting were Justice Samuel Alito, Justice Brett Kavanaugh, and Justice Clarence Thomas.

Gorsuch wrote, “Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct ‘unbecoming’ a county employee.”

The question was whether “sex” as a protected class applies to LGBTQ people who, by definition, do not fit socially-prescribed gender roles. Gorsuch wrote:

“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

–Supreme Court Justice Neil Gorsuch for the majority, Bostock v. Clayton County

Rejecting the county’s argument that Bostock would have been fired had he been a woman, Gorsuch wrote, “the traditional and simple but-for causation test…just doesn’t work when it comes to cases involving homosexual and transgender employees. The test is too blunt to capture the nuances here. The employers illustrate their concern with an example. When we apply the simple test to Mr. Bostock—asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman— we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred.

“While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken…. an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. ….Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. Mr. Bostock’s employer might have decided to fire him only because of the confluence of two factors, his sex and the sex to which he is attracted.”

Gorsuch also dismissed the employers’ “elephant-in-a-mousehole” claim that “no one” in 1964 could have anticipated the Civil Rights Act applying to LGBTQ people, noting that gay people almost immediately began seeking legal remedies soon after the law was passed: “This elephant has never hidden in a mousehole; it has been standing before us all along.”

The high court said today’s decision does not consider “bathrooms, locker rooms, or anything else of the kind.”

“The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “‘because of such individual’s sex,'” the majority opinion read. “As used in Title VII, the term ‘”discriminate against'” refers to ‘distinctions or differences in treatment that injure pro- tected individuals.’ Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts.”

In addition, the court ruled that employers’ religious beliefs had nothing to do with Title VII as it applies to LGBTQ employees in this case: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society,” the majority wrote. “But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for reli-gious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers.’ Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demon- strates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3.

“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

In 2013, Gerald Bostock, the former volunteer coordinator for Clayton County CASA, was fired after word got around that he played in the Hotlanta gay softball league in Atlanta. Bostock alleged that “in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where his supervisor was present, at least one individual made disparaging comments about Mr. Bostock’s sexual orientation and identity and participation in the softball league.”

Juvenile Court Judge Steven Teske later alleged that Bostock had improperly spent court funds at Cowtippers and F.R.O.G.S. in Midtown. Charges were referred to the Clayton County District Attorney’s office, which did not find sufficient cause to indict Bostock.

Bostock, who argued the financial mismanagement allegation was a pretext to fire him for his sexual orientation, filed a complaint with the Equal Employment Opportunity Commission on the basis of sex discrimination. In 2016, he sued Clayton County in a pro se action, alleging the county had discriminated against him on the basis of sexual orientation under Title VII. His suit was dismissed for failure to state a claim. Bostock then appealed to the U.S. Eleventh Circuit, which upheld the lower court’s ruling. He then took his case to the Supreme Court, where it was combined with two similar cases, Altitude Express v. Zarda, in which a gay skydiving instructor said he had been fired for telling a client he was gay, and R.G. and G. R. Funeral Homes vs. EEOC, in which a transgender woman, Aimee Stephens, told her employer she intended to return to work as a woman and was fired. (Both Zarda and Stephens died before today’s ruling, making Bostock the sole surviving original complainant. Their estates pursued their cases.)

In his dissent, Alito wrote, “If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one dif- ference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex….Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as ‘attract[ion] to men.’… Rather, the Court needs to show that its label is the correct one.”

Alito disagreed with the analogy with racial discrimination: “Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a pro- ject that aims to subjugate either men or women. An employer who discriminates on this ground might be called ‘homophobic’ or ‘transphobic,’ but not sexist.”

In a separate dissent, Kavanaugh, like Alito, accused the majority of legislating from the bench. “I have the greatest, and unyielding, respect for my col- leagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference.”

Former County Attorney Jack Hancock represented Clayton County. The Clayton Crescent is seeking comment from both Hancock and Bostock’s legal team.

Read case documents at Buckley Beal, which represented Bostock:

Read the full decision, including dissenting opinions, on the U.S. Supreme Court’s website: