In a landmark decision, the United States Supreme Court has ruled that discrimination because of a person’s sexual orientation or gender identity constitutes illegal sex discrimination in Violation of Title VII of the Civil Rights Act of 1964. This ruling applies nationwide, and means that employers may not fire, demote, harass, refuse to hire, or take any other negative action against employees because they are gay, lesbian, bisexual or transgender. This has long been the state of New Jersey employment law under New Jersey’s Law Against Discrimination
Title VII and the Bostock Case
Title VII prohibits discrimination against employees because of sex. Title VII specifically provides that
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
Three employees sued their employers in different courts claiming that they were fired in violation of Title VII because they were either gay or transgender which, they asserted, constituted illegal sex discrimination. The employers did not dispute the reasons for their terminations. However, they disagreed that firing an employee because of their sexual orientation or gender identity was discrimination because of their sex. The cases were appealed, and two federal courts of appeals ruled that this did constitute sex discrimination, and one held that it did not. All were appealed to the United States Supreme Court, which consolidated the cases to be heard together under the caption of Bostock v. Clayton County, Georgia.
In an opinion written by Justice Neil Gorsuch, the Supreme Court held that discrimination because of an employee’s sexual orientation or gender identity necessarily constituted discrimination because of their sex. Gorsuch explained that as a simple matter of statutory construction, there was no way to construe it otherwise; there is no way to separate the employees’ sexual orientation or gender identity from their sex.
Justtice Gorsuch reviewed prior case law on Title VII, and explained that in examining it several principles come into play. First, Title VII protects individuals, not groups. Second, Title VII employs a “but for” analysis – this means that even if there were multiple causes for the termination or other conduct in question besides sex, if the conduct would have happened but for the employee’s sex, then it violates Title VII. The “but for” conduct does not even need to be the primary motivating factor, provided it the conduct would not have occurred but for the employees’ gender.
Applying these principles to sexual orientation, there was no way to remove “but for sex” from the equation. For example, firing a man because he was attracted to men when not firing a woman who was also attracted to men necessarily means that the employees’ sex was a part of the decision. Moreover, Justice Gorsuch explained, there is no way to separate sex from an employee’s identity as transgender; a person’s gender identity cannot be considered without considering their gender.
Justice Gorsuch’s opinion is worth quoting at length (internal citations omitted).
[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. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
* * * *
But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.
* * * *
[In the prior cases the majority relied on] Sex wasn’t the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough. You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.
Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.
What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn’t intentional discrimination based on sex? Maybe the employers mean they don’t intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination…. But in both cases, the Court set all this aside as irrelevant. The employers’ policies involved intentional discrimination because of sex, and Title VII liability necessarily followed.
* * * *
There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.
* * * *
We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any 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. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.
* * * *
So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role.
At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about [Title VII].
* * * *
Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
Reaction & The Loving Opinion
Many commentators and activists considered it a surprising result, particularly because the opinion was written by Justice Gorsuch and joined by Chief Justice John Roberts, members of the Court’s conservative bloc. Certainly the dissenters certainly seemed surprised, and it is difficult to read the dissenting opinion by Justice Samuel Alito without getting the impression that he felt betrayed.
However, the majority opinion was solidly grounded on uncontroversial Supreme Court case law and the plain language of the statue – it absolutely is impossible to consider someone’s sexual orientation or gender identity without considering their gender. You just can’t.
But it shouldn’t be a surprise. Although the Bostock opinion did not cite it, over half a century ago, in one of its greatest cases, Loving v. Virginia, the Supreme Court held that state bans on interracial marriage violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Certainly, White people and African Americans were not denied the right to marry. But they could not marry people of a different race. Thus, there was no way to consider the problem without considering their race.
So too, here. You cannot consider employees’ sexual orientation without considering the sex of the person they are attracted to. Taking action against a gay employee because of the gender of the person they are attracted to is no different than banning marriage based solely on the race of the spouse, and an action taken against an employee because they are transgender is directly based on their gender.
The dissent could not come up with a convincing rationale for analyzing the problem any other way. The Supreme Court operates under the principle of stare decisis, which means that it is bound by precedent, or prior decisions. Rather than base its analysis on case law as the majority opinion did and stare decisis requires, the dissenters based their objections based on a book by the late Justice Antonin Scalia. Unfortunately, however convincing this book may be, it is not legal precedent.
New Jersey’s Law Against Discrimination Bans Discrimination Against LGBTQ Employees.
New Jersey has been in the forefront of prohibiting discrimination in employment, and in society at large. The New Jersey Law Against Discrimination has long banned discrimination in employment against LGBTQ employees. The Law Against Discrimination expressly prohibits discrimination because of an employee’s
race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer…
Thus while the protection the Bostock opinion confirmed in Title VII has long existed in New Jersey, the Supreme Court has extended these protections to LGBTQ employees throughout the country, many in states where this protection did not exist.
It is a great day for our nation.
McLaughlin & Nardi’s Employment Attorneys Stand for Equal Rights
Our attorneys and staff are committed to protecting employees’ civil rights, and to helping end discrimination. We represent public and private sector employees who have suffered termination, demotion or other adverse actions because of their gender, orientation, race, disability, or any other quality that makes them who they are. We also help employers fight discrimination by drafting anti-discrimination policies and training them on the requirements of state and federal anti-discrimination law.
Our attorneys have served the public in public and private capacities, and are committed to making our communities a better place. This includes fighting the cancer of discrimination in the workplace.
To speak with one of our New Jersey employment attorneys, call (973) 890-0004 or fill out the contact form on this page. We can help.