By Henry M. Perlowski and Montserrat Miller
On June 15, 2020, the U.S. Supreme Court issued a landmark 6-3 decision in Bostock v. Clayton County that settled whether Title VII’s prohibition of sex-based discrimination also prohibits discrimination based on sexual orientation and/or gender identity. In a decision authored by Judge Gorsuch and joined by Chief Justice Roberts and four other Justices, the Court ruled in the affirmative, extending Title VII’s protections to LGBTQ individuals. The Court also previewed potential litigation to follow, specifically the intersection between Title VII’s protections and the freedom of religion.
The Bostock opinion is important for CRAs, both in their capacities as employers of their own workforce, and how they work with their end user clients as it confirms that sex-based discrimination includes sexual orientation and gender identity as impermissible grounds upon which to make a hiring or any other employment decision. Considerations of Title VII protections are not new to the background screening industry, as Title VII regulates the use of criminal history and the U.S. Equal Employment Opportunity Commission’s 2012 guidance on an employer’s use of an individual’s criminal history in making employment decisions, which may, in some instances violate the prohibition against employment discrimination under Title VII on the grounds of race and national origin.
The Case Background and the Supreme Court’s Opinion
Bostock v. Clayton County came to the Supreme Court as a combination of three separate cases from the 2nd, 6th, and 11th Circuit Courts of Appeal. The three plaintiffs, Bostock, Stephens, and Zarda, had all alleged that they had been fired because of their sexual orientation and/or transgender status. There was a split in how the Courts of Appeal decided the cases. The 11th Circuit dismissed Bostock’s case holding that, as a matter of law, Title VII did not protect against discrimination based on sexual orientation, while the 2nd and 6th Circuits came to the opposite conclusion. The Supreme Court took the case to resolve this Circuit split.
Succinctly, the Supreme Court held as follows: “An employer who fires an employee merely for being gay or transgender violates Title VII.” While the majority opinion cited to a long list of previous employment discrimination cases, it relied on the general principle that an employer violates Title VII when it intentionally fires an employee at least partially because of their “sex,” a specifically enumerated protected class within Title VII, along with gender. It does not matter whether the employer’s decision is motivated by factors unrelated to sex or whether the policy is applied evenhandedly to all men or women. It also does not matter if a policy discriminates against both men and women, e.g., as a policy against gay men (but not gay women) would.
Based on these prior decisions and general principles, the Supreme Court determined that when an employer discriminates against an individual because he or she is gay or transgender, they are discriminating on the basis of sex, at least in part. Judge Gorsuch explained this via the following example: if the employer had two employees, one male and one female, both of whom are attracted to men, and the employer fires only the male employee who is attracted to men, it has discriminated on the basis of sex because it is treating two identical employees differently based on sex. The same holds true for a transgender individual: if two employees both identify as female, but one was born a female and the other a male, and the employer only fires the one who was born a male, it has discriminated against that employee on the basis of sex. The Court made this decision based on the majority’s interpretation of the plain language of Title VII.
Dissenting, Judges Alito, Kavanaugh, and Thomas each argued that Congress, in 1964, could not have intended the prohibition on discrimination because of “sex” to protect LGBTQ individuals, leaving scholars and partisans to debate whether the majority or minority was actually honoring a “textual” approach. Regardless of that debate, the Supreme Court has settled the meaning of Title VII, giving LGBTQ employees equal standing in the workplace. In addition to its symbolic importance, the Bostock opinion carries important practical meaning given that many states still do not protect against sexual orientation discrimination on the state level.
Without in any way detracting from this landmark decision, Bostock also raised additional questions and signals future litigation over the interplay between Title VII and the freedom of religion. In fact, this issue was raised both by Justice Gorsuch in his majority opinion and by other Justices in their dissents.
Taking Bostock to a practical level, CRAs and end user clients, in their respective capacities as employers, should: (1) evaluate their current anti-discrimination policies to ensure that sexual orientation and gender identity are included as protected classifications; (2) revise diversity and inclusion training to address issues specific to sexual orientation and gender identity; and (3) consider how to implement “top down” messaging regarding the need to treat all individuals, regardless of their differences, equally in the workplace. Absent the implementation of these measures, we expect that the kinds of “boy’s club atmospheric” claims that have been brought as part of the #MeToo movement will expand to include LGBTQ employees who feel marginalized by the same kinds of behaviors. On the flip side, however, employers who want to promote certain religious values, should seek the advice of counsel to understand what may be permissible given the open issues signaled by both the majority and dissenting opinions in Bostock.
In working with their clients, CRAs also should ensure that decision matrices and search requests do not unnecessarily consider and/or retrieve information that reveals sexual orientation or gender identity as factors in employment decision-making.
If you have questions about the Bostock decision and how it may affect your business, please contact Arnall Golden Gregory (AGG) attorneys Henry Perlowski (Henry.Perlowski@agg.com, (404) 873-8684), Chair of AGG’s Employment Law Team, or Montserrat Miller (Montserrat.Miller@agg.com, (404) 873-8768), Chair of AGG’s Background Screening Team.