In a sweeping decision on June 15, 2020, Bostock v. Clayton County, GA., the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects lesbian, gay, and transgender individuals from employment discrimination because “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”
While possibly lacking some of the sweeping and majestic language of earlier civil rights decisions, the Court nonetheless stated that Title VII’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.”
In concluding that Title VII protects lesbian, gay, and transgender employees and applicants, the Court adopted the Equal Employment Opportunity Commission’s interpretation of the law. (The Justice Department argued against the EEOC’s position.)
In 2013, the EEOC held that discrimination on the basis of transgender status was sex discrimination, Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992 (May 21, 2013), and in 2015 the Commission reached the same conclusion with respect to sexual orientation, Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). In Darin B. v. OPM, EEOC Appeal No. 0120161068 (Mar. 6, 2017), the EEOC held that a federal employee stated a claim for sex discrimination when he challenged OPM’s refusal to force Aetna Health Insurance to cover reconstruction surgery as part of a transgender transition.
What Does This Mean for Federal Employees?
Notwithstanding the Commission’s landmark decisions in those cases, the Supreme Court’s decision in Bostock is significant for federal employees: lower courts were divided on whether gay, lesbian, and transgender employees were protected by Title VII and, as a result, the federal government could have reversed course and rescinded those protections. With Bostock, that possibility is reduced to virtually zero.
Moreover, another aspect of the Court’s opinion can have an outsized impact on all discrimination litigation.
Over the past several years, the Supreme Court has increased the evidence needed by employees to prove discrimination, and employees now have to show that discriminatory motivation was the “but for” cause of the conduct they are challenging. In other words, employees have a hard time prevailing unless they can show that discrimination was not just “a cause,” but the primary or most significant cause of the conduct.
In Bostock, however, the Court appears to modify the “but for” analysis and hold that Americans are protected whenever their protected status is one of the reasons for an adverse employment action: “[T]he 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.” In other words, the employee still has a valid claim if sex made a difference in the outcome.
There will be limitations to Bostock’s reach: the Court made clear towards the end of the decision that it was not deciding the implications for religious entities or individuals who may object to dealing with gay, lesbian, or transgender employees. Nevertheless, there is no question but that the decision is a milestone in employment equality.
Richard R. Renner is a partner at Kalijarvi, Chuzi, Newman & Fitch, P.C. and has over 30 years of experience representing federal, state, local and private sector employees in a wide range of civil rights and whistleblower cases. He has particular expertise in finding available claims among the many federal and state whistleblower protections.