Syllabus for the United States Supreme Court's ruling in Bostock v Clayton County, Georgia addressing unlawful discrimination targeting gay and transgender employees

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, BOSTOCK v. CLAYTON COUNTY, GEORGIA, at the time the opinion is issued. The syllabus not part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. 

BOSTOCK v. CLAYTON COUNTY, GEORGIA 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17–1618. 

Argued October 8, 2019—Decided June 15, 2020

Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). 

In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender.

Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. and G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. 

The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. 

The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment resolves these cases.*

The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. 

In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank and Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267.  

These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. 

Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Three leading precedents confirm what the statute’s plain terms suggest. 

In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. Cite as: 590 U. S. ____ (2020).  And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex. The lessons these cases hold are instructive here. 

First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. 

Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. 

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. 

The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is.

The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. 

Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. 

The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. 

Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. 

But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. 

Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. 

Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. 

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.

* Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18– 107, R. G. and G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit. 

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. 

ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

The Syllabus and the Decision is posted on the Internet at:
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Standards applied by courts in determining if hostile work environment claim has merit

Plaintiff [Petitioner] appealed the decision of the United States Federal District Court's granting summary judgment to Defendants [Respondents] in the action brought by Petitioner in which he had alleged that he had suffered having to work in a hostile work environment in violation of 42 U.S.C. §1983 and the Equal Protection Clause of the Fourteenth Amendment. 

The Circuit Court of Appeals, noting that summary judgment is appropriate “if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” explained that to establish a hostile work environment claim under 42 U.S.C. §1983, a plaintiff must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment” such that a reasonable person would find it hostile or abusive. 

In addition, said the court, the victim "must subjectively perceive the work environment to be abusive" and the incidents complained of "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” 

Addressing Petitioner's complaint, the Court of Appeals opined that "the evidence brought forth at summary judgment is insufficiently severe to satisfy the objective component of the hostile work environment analysis" because:

1. The conduct here was not so continuous as to create an objectively hostile work environment and while distasteful, the incident was not repeated nor were similar vulgar comments made. 

2. Three other incidents recited by Petitioner were not sufficiently “continuous and concerted” as to satisfy the objective component of a hostile work environment claim. 

3. Although a single episode may be sufficient to give rise to a hostile work environment claim, the one incident so relied on by Petitioner "falls short of the severity required to make out such a claim."

4. Conceding that the workplace environment here was characterized by "a degree of offensive language," the court observed that Petitioner "himself had participated and which sometimes included physical contact."* 

Considering these factors, the Circuit Court concluded that the conduct and comments complained of by Petitioner "were not so humiliating as to take them outside the run-of-the-mill, if unpleasant, vulgarity present in this workplace" and the conduct Petitioner described is more properly characterized as “mere offensive utterance[s]” rather than the “physically threatening or humiliating” conduct condemned by Title VII and the 14th Amendment. 

Accordingly, the Circuit Court held that under the circumstances "the district court was correct in granting summary judgment in [Respondent's] favor." 

* The decision states that Petitioner's deposition testimony noted that he had “talked about sex” with other officers and that other officers had said “outrageous things” to be funny.

The decision is posted on the Internet at:

https://www.leagle.com/decision/infco20200603101

AELE case notes, publications, and seminar alerts for June 2020

• Adverse Actions Against Public Employees For First Amendment
  Speech: An Introduction and Overview. New June AELE Law Journal article, http://www.aele.org/law/2020all06/2020-06MLJ201.pdf
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• Public Safety Discipline and Internal Investigations Seminar---Attend Virtual or In Person. Las Vegas, Nevada is opening for business and will be in full swing for the September 28, 2020 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations Seminar." A first: You can virtually attend the seminar because it will be broadcast live. The seminar begins on Monday, September 28 and ends at Noon on October 1, 2020. Another first is online registration and payment. For registration and more information, http://www.aele.org/public-safety-discipline-and-internal-investigations.html
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• June Law Enforcement Liability Reporter: This issue has cases on assault and battery: pepper spray, false arrest/imprisonment: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, interrogation: juveniles, immigrants and immigration issues, search and seizure: home/business, and search and seizure: person. http://www.aele.org/law/2020all06/LR2020JUN.pdf
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• June Fire, Police & Corrections Personnel Reporter: This issue has cases on age discrimination: termination, FLSA: overtime in general, First Amendment, handicap/abilities discrimination, race discrimination, and whistleblower protection. http://www.aele.org/law/2020all06/FP2020JUN.pdf
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• June Jail and Prisoner Law Bulletin: This issue has cases on   COVID-19, governmental liability: policy/custom, medical care: dental, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmates, prisoner suicide, prisoner transport, and religion. http://www.aele.org/law/2020all06/JB2020JUN.pdf
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• An ON-DEMAND recording of the May 26, 2020 Webinar: Law Enforcement Use-of-Force Accountability: Qualified Immunity, "Standards," Degrees of Certainties, and Junk Science is now available for viewing at https://www.youtube.com/watch?v=Dg5GUe9BQt8&feature=youtu.be
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Imposing a "one-year dismissal probation" as part of a disciplinary penalty

A New York City police officer [Officer] was charged and found guilty of multiple New York City Police Department patrol guide violations that occurred in five separate incidents in course of a disciplinary hearing conducted by an assistant deputy commissioner [ADC]. The penalty recommended: a "one-year dismissal probation",* a 31 day suspension without pay which , the decision notes, had already been served, and the forfeiture of 20 vacation days.

Officer filed a CPLR Article 78 petition in Supreme Court challenging the disciplinary action taken against him. Supreme Court transferred Officer's petition to the Appellate Division, which court unanimously denied Officer's petition and dismissed the action.

The Appellate Division explained that all charges against Officer that were sustained by the ADC were supported by substantial evidence in the record. The court said it found no reason to overturn the ADC's credibility determinations, noting that such determinations are "largely unreviewable".**

As to Officer's allegation that hearsay evidence had been considered by the ADC in his arriving at his determination, the Appellate Division, citing Matter of Rosa v New York City Hous. Auth., Straus Houses, 160 AD3d 499, said "hearsay evidence may be the basis for an administrative determination and — if sufficiently relevant and probative — may constitute substantial evidence alone".

Addressing Officer's objection to the disciplinary penalty imposed on him, the Appellate Division, applying the so-called Pell standard***,  opined that it did not find such penalty to be so disproportionate to the offences for which Officer had been found guilty as to shock one's sense of fairness.

* No specific condition or reason is identified in the court's decision with respect an act or omission that would trigger the appointing authority's power to terminate Officer without notice and hearing while Officer was serving as a probationary employee [see Taylor v Cass, 122 A.D.2d 885]. 

** Berenhaus v Ward, 70 NY2d 436.

*** Pell v Board of Education, 31 NY2d 222.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_03075.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

 Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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A 15-day suspension from employment without pay found reasonable under the circumstances

Supreme Court denied a teacher's [Plaintiff] petition seeking to vacate an arbitration award suspending him for 15 days without pay. The Appellate Division unanimously affirmed the Supreme Court's ruling. 

Citing Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, the Appellate Division held that the arbitrator's decision has a rational basis and was supported by the evidence. 

The record, said the court, shows that the arbitrator reasonably determined that the Petitioner was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. 

Even if Petitioner was justified in removing the student from the classroom, said the Appellate Division, his actions in locking the boy out of the room, in a state of distress and leaving him in the hallway without adequate supervision, violated school policy.

The Appellate Division said that imposing a penalty of a 15-day suspension without pay from employment "does not shock our sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm