This article is the first of a two-part series that explains the recent landmark Supreme Court decision, Bostock v. Clayton, its dissents, and what it all means for workers in Wisconsin.

Decision Summary

 An employer who fires an individual merely for being gay or transgender violates Title VII because homosexuality and transgender status are inextricably bound up with sex.

In a landmark decision and a major victory for the LGBTQ community, the United Supreme Court ruled that federal law prohibits employers from discriminating against gay, lesbian and transgender employees in workplaces. On June 15, 2020, in a 6-3 decision, the Court ruled that the prohibition on discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 (Title VII) applies to discrimination on the basis of sexual orientation and gender identity.

Last October, the Supreme Court heard three cases from three federal Circuit Courts on the same issue but with different conclusions. The decision announced on June 15, 2020, is a consolidation of the cases.

Three Cases Address Return Different Answers to Same Question

Gerald Bostock worked as a child welfare advocate for 10 years for Clayton County, GA. The county fired him shortly after he began playing in a gay recreational softball league. Bostock filed a Title VII claim on the basis of sex discrimination. The Eleventh Circuit Court of Appeals dismissed his claim, saying Title VII does not prohibit employers from firing employees for being gay.

But the Second and Sixth Circuits reached the opposite interpretation. In R.G. & G. R. Harris Funeral Homes Inc. v. EEOC and Altitude Express, Inc. v. Zarda. Aimee Stephens, the sole transgender plaintiff in these cases, worked for six years as an employee of R.G. & G. R. Harris Funeral Homes. During that time, she was still in the closet – that is, she presented as a man. In 2013, she told her employer she intended to have sex reassignment surgery and to live and work as a woman. Two weeks later, the funeral home’s owner fired her and told her that the customers would find a transgender woman offensive. Stephens filed a Title VII claim for sex discrimination. The Sixth Circuit rejected the funeral home’s argument that Title VII does not explicitly protect transgender employees.
Donald Zarda worked as a sky diving instructor for Altitude Express, Inc. His employer fired him shortly after learning that he was gay. Zarda filed a Title VII complaint of sex discrimination. The Second Circuit found that Title VII’s prohibition on sex discrimination prohibits discrimination based upon sexual orientation.


Justice Neil Gorsuch Writes the Majority Opinion for the 6-3 Majority that Includes Justices Roberts, Ginsberg, Breyer, Sotomayor, and Kagan. 

Justice Gorsuch penned the Supreme Court’s majority opinion to settle the long-standing dispute: Does Title VII protect LGBT employees under the prohibition of discrimination “based on sex”? According to Justice Gorsuch, “[t]he answer is clear.”




Sex, he explains, plays a “necessary and undisguisable role in the decision,” which is, of course, “exactly what Title VII forbids.”


Justice Gorsuch acknowledges that the 1964 Congress who adopted the Civil Rights Act likely did not anticipate its reach would envelope gay and transgender people. However, (Justice Gorsuch writes) the members of that Congress also “[l]ikely…weren’t thinking about many of the Act’s consequences that have become apparent over the years,” including protections that most of us take for granted today, such as the ban on sexual harassment or prohibition against discrimination of motherhood. But, Justice Gorsuch explains, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. He proves himself a genuine textualist, adding, “only the written word is law.”

Next, Justice Gorsuch iterates the facts of the cases (although, he notes, “[f]ew facts are needed to appreciate the legal question we face.”). In each case, an employer fired an employee after learning that the employee is homosexual or transgender, allegedly for no other reason. Each employee brought a claim under Title VII alleging discrimination on the basis of sex. Two of the cases (Zarda, in the Second Circuit, and Stephens in the Sixth Circuit) found that Title VII prohibits employers from firing employees because of homosexuality or transgender status. One case (Bostock, in the Eleventh Circuit) dismissed the suit as a matter of law – that is, held that Title VII’s prohibition of sex-based discrimination doesn’t extend to homosexuality or transgender status. Thus, in a split between federal courts on the interpretation of federal law, the Supreme Court agreed to settle the matter.

Justice Gorsuch Examines What “Sex” in Title VII Means for Today’s Workplace

Justice Gorsuch explains that the Court typically interprets statutes by examining the “ordinary public meaning” of the key terms. That is, how the public would have understood the key term when it was passed. Accordingly, Justice Gorsuch examines Title VII’s key terms as they were used in 1964 (appealing to dictionaries of the time)


Title VII prohibits discrimination by employers on a variety of bases, including “sex”.


“Sex,” in 1964, referred to “status as either male or female [as] determined by reproductive biology.”

“Because of” in 1964 (as it does today) meant “by reason of” or “on account of.” How can we know when discrimination occurs “because of” sex? Justice Gorsuch describes the legal test: whether the particular outcome would not have happened but for the purported cause. Put another way, “change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” To be sure, there may be more than one cause of a particular outcome (e.g., a car accident occurred because Driver A ran a red light and Driver B failed to signal a turn at the intersection). In Title VII cases, employers can’t avoid liability for sex discrimination by claiming that another factor contributed to its decision to fire someone. If the employee’s sex is one factor, the act is unlawful discrimination.


“Discriminate” meant “[t]o make a difference in treatment or favor (of one as compared to others).” Specifically, Title VII prohibits discrimination against individuals based on sex, rather than discrimination against groups based on sex. To explain, Justice Gorsuch writes, [s]uppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall.”


So, it is unlawful when an employer intentionally relies in part on an individual employee’s sex when deciding to fire the employee. In other words, “if changing the employee’s sex would have yielded a different choice by the employer…a statutory violation has occurred.” The reasoning is that a person’s sex is not relevant to employment decisions. Then, Justice Gorsuch articulates the core of the opinion in two sentences:


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 the individual based on sex.

Justice Gorsuch illustrates that simple message by application. One example is an employer with two employees, both of whom are attracted to men. The employees are identical in all respects, except that one is a man and one is a woman. If the employer fires the man for no reason other than his attraction to men, the employer penalizes him for a trait tolerated in his female coworker.

Another example is an employer who fires a transgender employee who was identified as a male at birth but who now identifies as a female. If the employer retains an identical employee who was identified as a female at birth, the employer penalizes the employee identified as male at birth for traits tolerated in the employee identified as female at birth.


“[H]omosexuality and transgender status are inextricably bound up with sex.”


Even when an employer intends to discriminate based solely on sexual orientation or transgender status (and not on sex), the employer cannot avoid discriminating based on sex. Gorsuch illustrates this principle with the example of an employer whose policy is to fire homosexual employees. At a holiday office party, a model employee arrives and introduces a manager to Susan, the employee’s wife. Will the employee be fired? That depends on the sex of the individual employee. Accordingly, the employer could not discriminate based on sexual orientation without discriminating based on sex.

Employers Cannot Hide Behind Blanket Policies that Target All Homosexual and Transgender Employees Regardless of Sex.


As explained above, the statute applies to individual employees. Each violation of each individual based on that individual’s sex is an independent violation: “an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability….”


Next, having articulated and illustrated the rule, Gorsuch assesses three leading Title VII cases to confirm that his interpretation of the statue is sound. First, in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), a company refused to hire women with young children but hired men with children the same age. The company argued that the policy depended on being a female and having young children. The Court held that discrimination based partially on sex is still unlawful discrimination. Second, in Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978), an employer required women to make larger pension contributions than men, purportedly on the ground that women tend to live longer. The employer argued that it did not rely on sex, but on a statistically accurate statement about life expectancy. The Court determined that the focus on the individual employee in Title VII in unambiguous, and the policy treated individual female employees differently than men based on sex. Third, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), a male plaintiff alleged that he was sexually harassed by male coworkers. The Court held that it was immaterial that members of the same sex committed the violation – the plaintiff alleged that the actions would not have occurred if he were female, which is enough to trigger Title VII protection.

From these, Justice Gorsuch pulls three lessons from the above decisions:


  1. It is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.
  2. The plaintiff’s sex need not be the sole or primary cause of the employer’s action.
  3. An employer cannot escape liability by demonstrating that it treats males and females comparably as groups.


Justice Gorsuch Addresses the Employers’ Arguments


Next, Justice Gorsuch directs our attention to the employers’ arguments, which he says proceeds in two stages. First, the employers list reasons why discrimination based on homosexuality or transgender status is not “because of sex,” to which Justice Gorsuch responds as follows: 

Employers: Discrimination based on homosexuality and transgender status aren’t referred to as “sex discrimination”n in ordinary conversation (e.g., if you’re fired for being gay, you would probably tell your friends that you were fired for being gay, rather than you were fired “because of sex.”
Majority response: This argument “rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case.” In a casual conversation, the speaker will focus on the most relevant information (such as, “my boss fired me because I’m gay.”). But, as described earlier, Title VII asks whether sex was a but-for cause. That is, whether sex played any role in the firing.
Employers: But an employer could refuse to hire anyone who is gay or transgender, regardless of sex, so that wouldn’t be sex discrimination.
Majority response: There is no way to define gay or transgender status without considering sex. Consider an employer whose policy is to not hire anyone who is gay or transgender. Now consider an applicant who doesn’t know what those terms mean. Now, “try writing out instructions for who should check the [gay or transgender] box without using the words man, woman, or sex…[i]t can’t be done.
Employers: If Congress wanted to apply Title VII to LGBT people, it would have referenced them specifically.
Majority response: Discrimination based on LGBT status is discrimination based on sex. Also, there is “no such thing as a canon of ‘donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.” In other words, when Congress does not include exceptions to a broad rule, courts apply the broad rule. Consider Title VII’s protections against sexual harassment, which is also not specifically listed.


Second, the employers contend that Title VII was never intended to protect LGBT people. Justice Gorsuch responds:
Employers: Congress didn’t expect Title VII to apply to homosexual or transgender people. This matter should be referred back to Congress.
Majority response: Title VII is a “major piece of federal civil rights legislation,” and it is “written in starkly broad terms.” In fact, “many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’ at the time of the law’s adoption.” The Court shouldn’t ignore the plain, broad language of a law and seek some meaning lying beyond it. Besides, “[o]ne could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have mean to protect a disfavored group.


Finally, the employers argue that there will be an untold number of undesirable policy consequences that will follow the decision, to which Justice Gorsuch replies, “the same judicial humility that requires us refrain from adding to statutes requires us to refrain from diminishing them.” He adds, “[t]he 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 answers: Yes.


Ultimately, as Gorsuch writes, “none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is.”



Strongly-Worded Dissents from Justices Alito and Kavanaugh Invoking the Theories of Deceased Justice Antonin Scalia.


Justice Samuel Alito authored a stinging dissent to which Justice Thomas concurred. Justice Alito labeled the majority opinion “[a] more brazen abused of our authority to interpret statutes is hard to recall”. In the face of repeated failures by Congress to amend Title VII to specifically prohibit discrimination in employment on the basis of sexual orientation and gender identity, Justice Alito criticized the majority for legislating from the bench. He accused Justice Gorsuch of invoking the textualism advocated by the late Justice Scalia to disguise his mission to “update” old statutes to better reflect the current values of society.


Justice Alito also tackled the question of what the word “sex” meant in 1964 when Title VII was enacted and whether the court should limit their examination to what Congress understood “sex” to include in 1964. He rejected the majority view that discrimination based on sexual orientation or gender identity inherently entails discrimination because of sex, saying “[t]he arrogance of this argument is breathtaking.” He focused on whether Congress in 1964 outlawed discrimination because of sexual orientation or gender identity and concluded that it did not, noting that in 1964, homosexual conduct was thought to be a mental disorder and was regarded as morally culpable and worthy of punishment.


Lower federal court opinions and legal scholars have written extensively about Justice Scalia’s opinion in Oncale v. Sundowner, 523 U.S.75 (1998), and what it might mean for future sex discrimination claims. Justice Alito says that the cases addressed in the Bostock cases are nothing alike, and “…no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project.” In Oncale, a unanimous opinion authored by Justice Scalia expanded the protections of Title VII to a straight man who alleged that he was subjected to harassment by another man. While acknowledging that Title VII’s prohibition against sex discrimination did not explicitly include male-on-male harassment, Justice Scalia said “…statutory prohibitions often go beyond the principal evils to cover reasonably comparable evils.”

Justice Alito predicted the impact of the majority’s opinion will be far-reaching because more than 100 federal statutes prohibit discrimination on the basis of sex. He also cautioned about what he viewed as vexing problems the decision will cause in the use of bathrooms, locker rooms, and for the hiring process by religious organizations.

Justice Kavanaugh’s Dissent Sharply Criticized the Majority Opinion But Acknowledged “…the Important Victory Achieved Today”.

Justice Brett Kavanaugh authored his own dissent, echoing several of Justice Alito’s themes, including that the Title VII as drafted does not prohibit employment discrimination on the basis of sexual orientation, and that the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not the Court and invoking the writings of Justice Scalia, Justice Kavanaugh focused on the “ordinary” meaning of the phrase “discriminate because of sex”, and concluded that the phrase does not encompass discrimination on the basis of sexual orientation. In his view, the majority “usurps the role of Congress”. In an unexpected twist at the end of his opinion, he congratulated the gay and lesbian community on the “important victory achieved today”.

Of particular interest to Wisconsin lawyers are the frequent references in Justice Kavanaugh’s opinion to Seventh Circuit Judge Diane Sykes and her dissenting opinion in Hively v. Ivy Community College, a 2017 Seventh Circuit decision finding Title VII’s prohibition against discrimination on the basis of sex included discrimination on the basis of sexual orientation. Judge Sykes previously served on the Wisconsin Supreme Court.


What Does Bostock Mean for Wisconsin Employees?

If you feel like this decision is a big deal, you’re right. However, in the 7th Circuit (which includes Wisconsin), Title VII already applied to LGBT employees. So, what does this decision mean for Wisconsin workers? How will the decision affect other federal laws that use the word “sex”? What about religious exemptions?

Stay tuned for part two of our blog, where we will discuss some of the most pressing questions in depth. If you or someone you know has questions about the potential impact of this decision in the workplace, contact one of the employment lawyers at Hawks Quindel.

Hayley Archer

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