A Reflection on Bostock v. Clayton County

By: Elias J. Thompson

Today is the 138th anniversary of the first Labor Day[i], and, although the first Monday of September has remained a staple[ii], the original Labor Day organizers had much bigger plans than a three-day weekend.[iii] Labor Day began as a number of large union demonstrations in major U.S. cities[iv], but it gradually succumbed to the political pressures of the time by casting out more “radical” unionists to gain broader public support.[v] As a result, politically marginalized laborers had little to no hope of being represented by the large labor unions.[vi] Union organizers effectively turned the demonstrations into parades[vii] which soon settled into the public holiday we recognize today.[viii] The Civil Rights Act of 1964 was implemented to protect workers from discriminatory policies[ix], but the statute’s legislators— like the early union organizers— could not even begin to imagine what their creation would become.[x]

Title VII of the Civil Rights Act generally prohibits employment discrimination based on race, color, religion, sex, and national origin.[xi] Before the act was passed into law, a representative in opposition to the legislation proposed to add “sex” to the list of prohibitions on the bill in front of the House of Representatives for floor debate.[xii] The Johnson Administration viewed this as an attempt to bog down the act with excessive amendments,[xiii] and some news organizations spread the rumor that it was a joke.[xiv] Nevertheless, the term “sex” found its way into the version of the bill which passed into law July 2, 1964[xv], but many in power, including the members of the newly minted Equal Employment Opportunity Commission (hereinafter E.E.O.C.), viewed the sex provision as a fluke and not to be taken seriously.[xvi]

Today, employers have every reason to take Title VII sex discrimination very seriously,[xvii] because under a Title VII disparate impact claim, a lawsuit may be brought against an employer even if the employer’s discriminatory conduct was not intentional.[xviii] In E.E.O.C. v. Joe’s Stone Crabs, Inc., a well-known Miami Beach restaurant was sued under Title VII for disparate impact and disparate treatment[xix] after an investigation by the E.E.O.C. revealed that Joe’s discriminated against women in its recruitment and hiring practices.[xx] On appeal, the Eleventh Circuit reversed the trial court’s finding of intentional discrimination, because the E.E.O.C. failed to prove at trial that two of the presumptive employees in the class-action were dissuaded from applying because of Joe’s hiring policy.[xxi] Yet, dissuasion is only the first allegation a plaintiff must prove in order to bring a proper disparate treatment in hiring claim.[xxii] After proving certain threshold inquiries[xxiii], an employee must also demonstrate that if it were not “because of” their Title VII status[xxiv] then the alleged discriminatory treatment would not have occurred.[xxv]

In the most recent U.S. Supreme Court Title VII decision which occurred over the summer— Bostock v. Clayton County— the aggrieved employees identified as either gay or transgender and claimed that their employment was terminated for these very reasons.[xxvi] The Court was left to decide if Title VII’s prohibitions extended to “homosexual [and] transgender” status by considering the “because of” causation for their termination.[xxvii] The Court found that it is impossible to discriminate against an individual who identifies as gay or transgender without discriminating on the basis of sex,[xxviii] because the same quality found in a heterosexual or cis-gendered employee would be a “but-for” cause of termination for a gay or transgender employee.[xxix] The Court broadly demonstrated its reasoning with an example: an employer who fires women for being Yankees fans, but does not fire men who are also Yankees fans, terminates employment exclusively on the basis of sex.[xxx] Therefore, an employee who is married to a woman and is also a woman cannot be discriminated against, because the same quality— marriage to a woman— would be tolerated in an employee who is a man.[xxxi]

Although the Court’s reliance on the binary distinction between the sexes may present future issues, in particular to employees that identify as gender non-binary[xxxii], the reasoning for prohibiting discrimination against a gender non-binary employee is essentially the same as the majority’s reasoning in Bostock. In either case, the employer discriminates against one employee for qualities that are permitted in another employee. As long as these qualities are permitted among some employees then an employer cannot use a sex-based distinction to determine which employee is permitted such qualities.[xxxiii]

The legislators of Title VII believed that the equal treatment of individuals on the basis of sex was absurd[xxxiv], but the Supreme Court’s Bostock decision did not attempt to re-write the misogyny of the past nor did it presume to extend Title VII’s equal employment protections.[xxxv] The Court simply used the plain-meaning of Title VII to hold that where one employee is permitted and another is not then the distinguishing factor between the two employees cannot be sex-based.[xxxvi] The first Labor Day demonstration did not mark the beginning of the fight for fair treatment in employment,[xxxvii] and Bostock is hardly the end.[xxxviii] However, for our nation’s most vulnerable citizens, who have been denied entry into unions for political expediency[xxxix] and who were scoffed at when they claimed a right to fair opportunity in employment, Bostock is worth celebrating. Happy Labor Day.

[i] Michael Kozin & Steven Ross, Dilemma of a Workers’ Celebration, J. Am. Hist., 1294 (Mar., 1992).

[ii] See 5 U.S.C. § 6103(a) (establishing the ten legal public holidays).

[iii] See supra. Kozin & Ross, n. i at 1300-01.

[iv] Id. at 1301-02.

[v] Id. at 1303-04; 1309 (organizers removed internationalist slogans and symbology from the demonstrations in favor of more traditional patriotic American iconography, and laborers of color— particularly in the southern states— had to hold separate Labor Day demonstrations).

[vi] Id.

[vii] Id. at 1306-07.

[viii] See supra. §6103(a) (effective as of October 17, 1998).

[ix] Camille Hebert, Redefining the Burdens of Proof in Title VII Litigation: Will Disparate Impact Theory Survive Wards Cove & the Civil Rights Act of 1990, 32 B.C.L.R. 1, 13 (1990).

[x] See e.g.,Rachel Osterman, Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination was an Accident, 20 Yale J. L. & Fem. 409, 412 (2009); supra. n. i at 1301-02.

[xi] See 42 U.S.C.A. §2000e-2(a)(1)-(c).

[xii] See supra. Osterman, n. ix at 412.

[xiii] Id. at 414-15.

[xiv] Id. at 417-18.

[xv] Id. at 415

[xvi] Id. at 416.

[xvii] See U.S.Equal Opportunity Commission, Employers, https://www.eeoc.gov/employers (last updated Sep. 5, 2020).

[xviii] See supra. §2000e-2(a)(1)-(c); 42 U.S.C.A. §2000(k) (stating the burden of proof for a disparate impact claim).

[xix] See E.E.O.C. v. Joes Stone Crabs, Inc., 296 F.3d 1265, 1269 (11th Cir. 2002).

[xx] Id. at 1274 (at trial it was found that Joe’s delegated hiring authority to subordinate employees in what local servers referred to as a “roll call,” and that the widely held belief among the server community was that Joe’s did not hire women servers).

[xxi] Id. at 1273-75.

[xxii] Id.

[xxiii] Id.

[xxiv] Supra. §2000e-1(a)(1) (e.g., race, color, religion, sex, or national origin).

[xxv] See Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020); University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2533 (2013); Gross v. FBL Financial Servics, Inc., 129 S.Ct. 2343 (2009).

[xxvi] Bostock, 140 S.Ct. at 1738 (finding a need to resolve the issue because of the diverging decisions of the circuit courts).

[xxvii]  Id. at 1734, 1740.

[xxviii] Id. at 1741.

[xxix] Id.

[xxx] Id. at 1742.

[xxxi] See Id.

[xxxii] See supra. n. xvii Coverage, https://www.eeoc.gov/coverage (last updated Sep. 5, 2020) (including pregnancy, gender identity, and sexual orientation under the term “sex”).

[xxxiii] See e.g., Bostock.

[xxxiv] See supra. Osterman, n. ix at 417-18.

[xxxv] See e.g., Bostock.

[xxxvi] Id. at 1750

[xxxvii] See supra. Kozin & Ross, n. i

[xxxviii] See e.g., Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (10th Cir. 2020).

[xxxix] See supra. Kozin & Ross, n. I at 1303-04; 1319.

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