The U.S. Supreme Court in June issued a landmark decision that has significant implications for school districts across the country. The decision, Bostock v. Clayton County, actually resolved three cases pending before the court. They all involved longtime employees who were fired shortly after they revealed to their employers that they were homosexual or transgender. In each case, the employee was allegedly fired for no reason other than the employee’s homosexuality or transgender status.
The cases required the court to decide whether discrimination against an employee because of their status as a homosexual or transgender employee constituted prohibited employment discrimination “on the basis of sex” within the meaning of Title VII of the Civil Rights Act. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.
The Supreme Court found that an employer who fires an individual merely for being gay or transgender violates Title VII. The court held that “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.”
In reaching this decision, the Supreme Court offered the following example as illustrative of its position. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. An employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the employee is a man or a woman. The decision to fire the employee is made “on the basis of” the employee’s sex. It is this reliance on sex in the employer’s decision-making that raises issues under Title VII.
Takeaways for districts
The ruling has a broad and immediate impact for employers, including school districts, across the country. Within the opinion, the court highlights three lessons for employers relating to the enforcement of Title VII, all of which are applicable to school districts.
First, it is irrelevant what a district calls or labels its discriminatory practice. When a district fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex, which is all Title VII demands to establish liability.
Second, an employee’s sex doesn’t need to be the sole or primary cause of a district’s adverse employment action. So long as it was a motivating factor, the existence of other motivating factors does not negate the district’s liability.
Finally, a district cannot escape liability by demonstrating that it treats males and females comparably as groups. A district that intentionally fires an individual homosexual or transgender employee because of that individual’s sex violates Title VII even if the district subjects all male and female homosexual or transgender employees to the same rule.
Prior to this decision, only about half of the states in the country had laws that specifically prohibited discrimination in the workplace on the basis of sexual orientation and gender identity. The Supreme Court’s decision means that all school districts can now face liability under Title VII for taking an adverse employment action against one of their employees based on the employee’s homosexuality or transgender status.
Although the cases before the Supreme Court all dealt with the termination of an employee, other areas that might give rise to violations of Title VII including—but are not limited to—hiring, promoting, transferring, disciplining, measuring performance, or providing benefits.
School districts should review their nondiscrimination policies to determine whether they should be updated to address treatment based on sexual orientation or gender identity. Updating workplace policies to specifically include these categories may help to educate and inform employees about the range of conduct that is prohibited in the workplace. Districts should also take the time to inform board members and employees with decision-making authority about the ruling, either through updated training programs or written communications.
Implications beyond Title VII
Although the Bostock ruling will undoubtedly influence future employment cases, it is unknown just how far the decision will sweep beyond Title VII. For many years, courts have looked to the Title VII case law and its handling of discrimination “on the basis of sex” to guide them in their application of other federal and state statutes. However, in delivering the opinion of the court in Bostock, Justice Neil Gorsuch stated that the court’s decision did not extend beyond Title VII to other federal or state laws that prohibit sex discrimination.
He wrote that “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. … Whether other policies and practices might or might not qualify as unlawful discrimination … are questions for future cases, not these.” Even under Title VII, the Supreme Court made clear that the issues of sex-segregated bathrooms, locker rooms, and dress codes were not directly addressed by the Bostock decision.
In his dissenting opinion, Justice Samuel Alito posited that “what the court has done today—interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity—is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex.” Justice Alito specifically pointed to Title IX as an example and highlighted several pending and recent court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. In light of the Bostock decision, districts may see renewed or increased challenges to their bathroom or locker room policies, particularly those that prohibit access based on an individual’s gender identity as compared to their biological sex.
The Bostock decision also sets the stage for legal challenges to recent decisions the Trump administration has taken to rescind protections in place for transgender individuals. In June, just three days prior to the Supreme Court’s ruling, the U.S. Department of Health and Human Services announced that, as part of a new final regulation, it had eliminated Obama-era nondiscrimination rules under Section 1557 of the Affordable Care Act.
These rules had defined the term “on the basis of sex” to include gender identity, sex stereotyping, and pregnancy. Similar action was taken by the U.S. Department of Education in 2017, when it withdrew Obama-era guidance that recognized the prohibitions on discrimination “on the basis of sex” in Title IX required access to sex-segregated facilities based on gender identity. In its 2017 withdrawal letter, the department stated its belief that the prior guidance did not contain “extensive legal analysis or explain how the position [was] consistent with the express language of Title IX” and therefore was rescinded “in order to further and more completely consider the legal issues involved.”
Although the Supreme Court’s decision in Bostock did not automatically invalidate the new Health and Human Services regulations or Department of Education guidance, the Supreme Court’s opinion calls into question the legal analysis in support of the changes.
Bostock is certainly a momentous decision, and district employers should quickly come into compliance with the employment protections it compels for employees. However, while momentous, Bostock leaves the question of its applicability “beyond Title VII” unanswered for now. For this reason, school boards should continue to work with their school attorneys for assistance on the specific applicability of the decision in their district.
Sara C. Clark (sclark@ohioschoolboards.org) is chief legal counsel at the Ohio School Boards Association.
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