(2020) 590 U.S. 644
Supreme Court of the United States · Decided June 15, 2020
01. Facts
Gerald Bostock worked for Clayton County, Georgia, as a child-welfare advocate, and under his leadership the county won national awards for its work; after a decade with the county, Bostock began participating in a gay recreational softball league and was soon fired (590 U.S. at p. 653). His case was decided together with companion cases involving a skydiving instructor (Zarda) fired for being gay and a funeral-home employee (Stephens) fired after announcing she was transgender (id. at p. 653). Each plaintiff alleged unlawful sex discrimination under Title VII (id. at p. 653).
02. Procedural posture
The United States Supreme Court held that firing an employee for being gay or transgender violates Title VII, resolving the consolidated cases accordingly (590 U.S. at p. 653).
03. Issue
Whether Title VII’s prohibition on discrimination “because of sex” encompasses discrimination because of an individual’s sexual orientation or gender identity.
Holding
An employer that fires an individual merely for being gay or transgender violates Title VII. Discrimination based on sexual orientation or gender identity necessarily entails discrimination because of sex, because it is impossible to discriminate against a person for being gay or transgender without taking the person’s sex into account.
05. Reasoning
Applying a textual, but-for analysis, the Court reasoned that if an employer treats an employee worse for being attracted to, or identifying as, a particular sex, the employer has necessarily relied in part on the employee’s own sex — treating, for example, a man attracted to men differently than a woman attracted to men. Because sex is a but-for cause of the adverse action, the discrimination is “because of sex” within Title VII’s plain terms, regardless of whether the drafters anticipated the application.
Practice Pointer
Bostock federalizes protection that California’s FEHA already provided expressly (the FEHA enumerates sexual orientation and gender identity). For California practitioners, FEHA remains the primary vehicle, but Bostock supplies a federal claim and reinforces the textual logic; counsel should plead FEHA’s express protections and may add Title VII where federal jurisdiction or remedies are advantageous.
06. Open questions
Bostock resolved coverage of sexual orientation and gender identity under Title VII but expressly left for future cases questions about religious exemptions (including under RFRA and the ministerial exception) and issues such as sex-segregated facilities and dress codes.
Cite this entry
Bostock v. Clayton County (2020) 590 U.S. 644.
“Bostock worked for Clayton County, Georgia, as a child welfare advocate. … Mr. Bostock began participating in a gay recreational softball league.” — 590 U.S. at p. 653
Source: United States Reports / official slip opinion – [insert durable supremecourt.gov link at verification].
Read the full opinion (free full text · Justia) →
See also: Ames v. Ohio Department of Youth Services · Sharp v. S&S Activewear