By Charissa C. Huang and Kevin J. Cowan
The LGBTQ community has won a major victory in their fight for equal treatment under the law. On June 15, 2020, the United States Supreme Court delivered a 6-3 decision in Bostock v. Clayton County, Georgia, 2020 WL 3146686 (U.S. June 15, 2020), where it added two new protected classes to Title VII of the Civil Rights Act of 1964: sexual orientation and gender identity. The decision comes somewhat as a surprise due to the Court’s conservative leaning after the appointments of Justices Gorsuch and Kavanaugh by President Trump in recent years.
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.” Whether “because of sex” encompassed sexual orientation or gender identity was an unsettled issue of law prior to the Supreme Court’s ruling. While the Second and Sixth United States Circuit Courts of Appeals held that sexual orientation and transgender discrimination violated Title VII, the Eleventh Circuit held that employers were permitted to fire employees for being gay. Now, pursuant to the Supreme Court’s ruling in Bostock, where an employee’s sexual orientation or gender identity is a “but-for cause” of an employer’s decision to refuse to hire or to discharge an employee, the employer is liable for violation of Title VII.
The decision consolidated the three cases of plaintiffs Bostock, Zarda, and Stephens with each employee having been fired because they were either gay or transgender. Bostock was fired after his employer discovered he participated in a gay recreational softball league. Zarda was fired after he merely mentioned to his employer that he was gay. Stephens first presented as a male when she was hired but was then discharged after she informed her employer that she planned to live and work as a woman.
Writing for the majority, Justice Gorsuch wrote that one cannot discriminate based on sexual orientation or gender identity without first discriminating based on sex. In doing this, the Court interpreted because of sex to include sexual orientation and gender identity. Justice Gorsuch opined, “there is no escaping the role intent plays here: 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 decision making.”
Justice Gorsuch used the following example to explain his rationale: if an employer had a policy of firing homosexual employees and two model employees, one male and one female, both arrived at a dinner party with a wife, then when the employer follows its policy the firing decision would entirely depend upon the sex of the employees.
In his dissent, Justice Alito, joined by Justice Thomas, raised concerns that the judiciary was overstepping its authority, and this issue would have been better left to Congress. He explained that the relevant inquiry should not be what sex means today, but rather the definition of sex when Title VII was passed in 1964, which he explained does not include sexual orientation or gender identity. His displeasure with the decision was apparent when he wrote, “a more brazen abuse of authority to interpret statutes is hard to recall.”
In a separate dissent, Justice Kavanaugh wrote that sexual orientation discrimination is distinct from sex discrimination. He noted that several states have statutes banning sexual orientation discrimination in the workplace, so Congress could do the same thing at the federal level. He went on to state, “under the Constitution and the laws of the United States, this Court is the wrong body to change American law in that way.”
Michigan’s state law parallel to Title VII is the Elliot-Larsen Civil Rights Act, which has had many differing interpretations for its own “because of sex” provision. Bill Schuette, the former Michigan Attorney General, stated in a formal opinion that sexual orientation and gender identity were not protected under Michigan state employment law. Schuette advocated that the legislature should be the entity to extend or narrow statutes. Current Attorney General Dana Nessel declined to issue her own formal opinion but did say the state was not bound by her predecessor’s opinion.
Furthermore, the Michigan Civil Rights Commission issued an interpretive statement in 2018 interpreting sex in Elliot-Larsen to include both sexual orientation and gender identity. The Commission has continued to direct the Michigan Department of Civil Rights to investigate complaints based on these two characteristics.
Prior to this ruling, the Fair and Equal Michigan ballot initiative was supporting the interpretation of Elliot-Larsen to include sexual orientation and gender identity. The campaign supporting the ballot initiative is analyzing whether to move forward with it in wake of this new decision. Michigan’s state courts have long looked to the Supreme Court’s interpretation of Title VII for guidance in interpreting Elliot-Larsen. Michigan’s courts can now either follow the lead of the Supreme Court and interpret “because of sex” to include sexual orientation and gender identity or leave the issue to the legislature to decide.
Michigan employers and employees should make note of this decision and be prepared for the potential ramifications. Smith Haughey will continue to monitor the status of Michigan employment law as state and federal courts begin to hear these types of cases. For any employment law questions please contact Charissa Huang, Mike Doversberger, Kevin Even, Kristen Guinn, Tom McCarthy, and Matt Wikander.