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Supreme Court Ruling Prohibits Discrimination Based on Sexual Orientation or Transsexual Status

June 17, 2020

On June 15, 2020, the Supreme Court handed down a landmark decision in Bostock v. Clayton County, Georgia, et al, in which it unequivocally clarified that the Title VII protection against sex-based discrimination also applies to sexual orientation or transsexual status.

In explaining the Court's 6-3 majority opinion, Justice Gorsuch put on a clinic with respect to statutory interpretation. When the law is clear and unambiguous, such as Title VII of the Civil Rights Act of 1964, the analysis need not go further. On its face, Title VII clearly forbids treating an individual differently because of their sex.

The plain language of Title VII unambiguously states that no individual can be treated differently by an employer because of their sex. As long as sex is a “but for” cause of the adverse employment decision, then liability may apply to the employer. Simply stating additional or alternative reasons for the decision does not undo the fact that but for the employee's sex, they would not have been fired.

"[But For] causation is established whenever a particular outcome would not have happened “but for” the purported cause…In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” - Bostock v. Clayton County, GA.

A person's sexual orientation, or transsexual status, is inextricably linked with that individual's sex. Therefore, an employer cannot fire someone for being homosexual and claim that they did not so do because of that individual's sex. When an employer would not fire a woman for being attracted to men, but does fire a man for being attracted to men then it is clearly discrimination based on the employee's sex.

In response to arguments put forth in the Dissenting opinions, Justice Gorsuch stated that to suggest that this decision should have been left to Congress to remediate would necessarily require the Court to ignore its Constitutional duty to interpret the laws as written. Congress already provided the law; therefore, it is the Court's duty to determine whether anyone has violated that law as written.

Though this reading by the Supreme Court may seem rather straightforward, the protections provided by Title VII for sexual orientation and transsexual status were not recognized by a majority of jurisdictions.

Under the Obama administration, the EEOC had issued rulings based on this line of reasoning. However, the EEOC's decisions are not binding on the courts. This fact is one reason why prior to Monday's decision there was a split in the Circuits with respect to this issue. The Court's decision here effectively makes the EEOC's decision law, and therefore binding on all courts.

What Does This Mean?

It means that whereas before a party would have to rely on convincing a court to follow EEOC rulings to allow the case to proceed, now a party has a cause of action that is recognized by the courts. The employee who has suffered discrimination as a result of their homosexual or transsexual status has one less barrier to overcome.

Going forward, any employee, or prospective employee, who has been treated differently due to their sexual orientation or transsexual status by an employer, and as a result they have been denied employment or had the conditions of their employment negatively affected, can now seek a redress in any court.

Attorneys will need to draft charges of discrimination and subsequent lawsuits so that the underlying basis, that is the protected class, is “Sex”, with a clarification that it is due to their client's homosexual or transsexual status.

Anthony Bretz has previously represented clients who were negatively treated by their employers as a direct result of their homosexual orientation. Prior to filing any charge of discrimination our office reviews all relevant court case rulings and EEOC rulings for the strongest basis on which to file claims for our clients. Having an experienced attorney can be the difference between a satisfactory outcome or being told the law doesn't support your issue. Contact us today to learn what your options are and start protecting your rights.