Posted by: Edward Phillips & Brandon Morrow on Sep 1, 2020

Journal Issue Date: Sept-Oct. 2020

Journal Name: Vol. 56 No. 9

When Congress passed the Civil Rights Act of 1964, Title VII of the Act prohibited employment discrimination “because of … sex.” That language has not changed. Its meaning has. On June 15, 2020, the United States Supreme Court issued its landmark and much-awaited decision in the consolidated case of Bostock v. Clayton County, Georgia.1 Justice Gorsuch, writing for the 6-3 majority, held an employer who fires an employee because the employee is homosexual or transgender violates Title VII’s prohibition on sex-based discrimination.

How did the Supreme Court reach this landmark decision? How far-reaching is Bostock? And how, if at all, does Bostock affect claims under the Tennessee Human Rights Act, Tennessee’s counterpart to Title VII? We address all that below.

‘Because of Sex’ – Bostock v. Clayton County, Georgia

The Supreme Court granted certiorari to resolve a circuit split regarding Title VII’s application to employees who claim they were discriminated against because of their homosexual or transgender status. The case consolidates three appeals from lower courts in which the employers all acknowledged they fired their employees “for no reason other than the employee’s homosexual or transgender status.” In the first case, Gerald Bostock, a child welfare advocate, was fired after his employer, Clayton County, Georgia, learned of his participation in a gay softball league. In the second case, Donald Zarda was a skydiving instructor who was fired after telling his employer he was gay. In the third case, Aimee Stephens, born male, worked at a funeral home until she was fired after telling the company she was going to transition to life as a woman.

All three employees alleged discrimination on the basis of sex under Title VII. The Eleventh Circuit dismissed Bostock’s case on summary judgment. The Second Circuit refused to dismiss Zarda’s case, concluding that discrimination on the basis of sexual orientation violated Title VII. And the Sixth Circuit refused to dismiss Stephens’ case, holding that Title VII bars discrimination on the basis of gender identity. 

The issue before the Supreme Court turned on the interpretation of three words in Title VII’s prohibition on discrimination: “because of … sex.”2 The majority concluded that discrimination on the basis of homosexuality or transgender status cannot be separated from discrimination on the basis of sex. The court noted that the overarching message of this Title VII language is that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.”3 The court proffered two examples to explain its holding.

In the first example, there are two employees, both of whom are attracted to men. The two individuals are, in 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 that he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague (i.e., being attracted to men). This, the court held, is discrimination because of sex.

In the second example, an employer fires a transgender person who identified as a male at birth but who now identifies as a female. If the employer, simultaneously, retains an equally qualified employee who identified as female at birth, then the person who identified as male at birth has been penalized, the court reasoned, for traits or actions that it tolerates in the other employee. The court capped off this example by stating that “[a]gain, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”4

What about where an employer terminates both a male and a female based on their sexual orientation? That’s not showing preferential treatment “because of sex,” right? This argument was flawed, the court held, because Title VII requires courts to analyze acts of discrimination against individual employees, rather than classes of employees. “Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women,” the court held, “[i]nstead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII.”5 

Justice Gorsuch readily and immediately admitted that those who voted for the Civil Rights of Act of 1964 likely did not contemplate the statute’s language would, someday, protect homosexual and transgender employees from employment discrimination. The expectations of those members of Congress, the court held, did not trump the express terms of the statute. (i.e., “because of … sex”). Indeed, as Justice Gorsuch wrote, “[s]ometimes small gestures can have unexpected consequences.”6

Bostock has its limitations

The court specifically declined to address how its decision impacts sex-segregated bathrooms, locker rooms, and sex-specific dress codes in the workplace, reasoning that such situations were not “before” the court. Some may cite this as a prime example of judicial restraint. Others, however, see it as a textbook example of punting on issues that may yield controversial results. Indeed, Justice Alito’s minority opinion takes the majority to task for dodging this “matter of concern.”7

Toward the end of the majority opinion, the court suggested that concerns for religious liberty may, under the appropriate circumstances, “supersede” Title VII’s protections. In support of this mostly hypothetical position, the court referenced the exemption in Title VII for religious institutions,8 the First Amendment exception to the application of anti-discrimination laws,9 and the Religious Freedom Restoration Act,10 which the court categorized “as a kind of super statute.” Despite forecasting what might be the outcome of a battle between religious liberty and Title VII, the court ultimately held this was a question best left for another day because that precise issue was not before the court. Interestingly, Aimee Stephens’ employer, the funeral home, had lost on its RFRA-based defense in the Sixth Circuit but chose not to pursue it in its certiorari petition to the Supreme Court.

Bostock’s impact on THRA claims

The Bostock decision was limited to an interpretation of Title VII’s language. Keep in mind that Title VII only applies to employers with 15 or more employees.11 The Tennessee Human Rights Act (THRA), on the other hand, applies to employers with eight or more employees.12 So, for those employers subject to the THRA, but not Title VII, what is the impact of the Bostock decision?

The language prohibiting discrimination on the basis of sex is the same in Title VII and the THRA. Both statutes prohibit discrimination “because of sex.”13 In fact, one of the stated purposes of the THRA is to “[p]rovide for execution within Tennessee of the policies embodied in the federal Civil Rights Acts of 1964, 1968 and 1972[.]”14 And Tennessee courts have been encouraged to “examine federal law when analyzing issues under the Tennessee Human Rights Act.”15

However, Tennessee courts “are neither bound by nor limited by the federal law when interpreting” the THRA.16 Bostock provides guidance, but it does not necessarily dictate, the scope of discrimination “because of sex” under the THRA. 

EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an attorney with Kramer Rayson LLP in Knoxville. He represents businesses, educational institutions and religious institutions in employment and civil rights related matters. He holds a bachelor’s degree from the University of Tennessee and a juris doctorate from the University of Tennessee College of Law.

The authors wish to thank HANNAH-CLAIRE BOGGESS, a student at the University of Tennessee College of Law, for her assistance with this piece.


NOTES

1. 140 S. Ct. 1731 (2020).
2. 42 U.S.C.§ 2000e-2(a)(1).
3. Id.
4. Id at 1741-1742.
5. Id at 1742.
6. Id at 1737.
7. Id at 1778.
8. 42 U.S.C. § 2000e–1(a).
9. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 188 (2012).
10. 42 U.S.C. § 2000bb et seq.
11. 42 U.S.C. § 2000e(b).
12. Tenn. Code Ann. § 4-21-102(5).
13. 42 U.S.C. § 2000e–2(a)(1); Tenn. Code Ann. § 4-21-101(a)(3).
14. Tenn. Code Ann. § 4–21–101(a)(1).
15. Weber v. Moses, 938 S.W.2d 387, 390 (Tenn.1996) (citing Bennett v. Steiner–Liff Iron & Metal Co., 826 S.W.2d 119, 121 (Tenn.1992)).
16. Parker v. Warren Cty. Util. Dist., 2 S.W.3d 170, 172 (Tenn. 1999).