Title VII Found to Prohibit Sexual Orientation and Transgender Discrimination

The U.S. Supreme Court recently ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay and transgender employees. Bostock v. Clayton County. Although the Connecticut Fair Employment Practices Act (CFEPA) already provided this protection, gay and transgender employees claiming workplace discrimination can now bring complaints under federal law as well.

In Bostock, the Court considered three separate cases in order to address a Circuit Court split. In one case the Eleventh Circuit concluded that Title VII does not prohibit discrimination against gay and transgender employees while the Second and Sixth Circuits came to the opposite conclusion. In two of the cases (Eleventh and Second Circuits), gay men brought suit when they were fired due to their sexual orientation. The third case (Sixth Circuit) involved a transgender woman who was fired after announcing she would embrace her female gender identity at work. In all three cases the employer admitted it fired the employees due to their sexual orientation or gender identity/expression, but argued doing so did not violate Title VII.

The question before the Court was whether Title VII’s prohibition against sex discrimination included employer actions taken because of an employee’s sexual orientation, or gender identity and expression. In finding such actions violate the law, the Court stated that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. In doing so, sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Court explained it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. It then offered an example. An employer has two employees who are attracted to men. Both employees are identical in all material respects except one is male and the other is female. If the employer fires the male for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits it permits with female employees.

In arriving at its decision, the Court applied the “but for” standard to evaluate the employers’ actions. The standard is met when a particular outcome would not have happened “but for” the purported cause. The “but for” test directs the court to change one thing at a time and see if the outcome changes. If it does, a “but for” cause is found. The Court further elaborated that “when it comes to Title VII, the adoption of the traditional ‘but for’ causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one ‘but for’ cause of that decision, that is enough to trigger the law.”

The Court then contrasted the “motivating factor” standard introduced through the 1991 amendments to the Civil Rights Act of 1964. “Under this more forgiving standard, liability can sometimes follow even if sex wasn’t the ‘but for’ cause of the employer’s challenged decision.” In motivating factor cases, also known as mixed motive cases, if the employer can show it would have taken the same action for reasons other than a protected characteristic (sex), it will still be liable, but the damages available to the plaintiff are severely limited to declaratory and injunctive relief, plus attorneys’ fees, but not the traditional make whole and compensatory damages available if the ‘but for’ standard is met.   In the instant case, however, dependence on the “motivating factor” standard was unnecessary because plaintiffs proved “but for” causation.

The Court’s application of the “but for” standard to award the full range of available remedies is different from the test used under CFEPA, which applies the “motivating factor” test. A plaintiff bringing a sex discrimination case under CFEPA need only prove that sex was a “motivating factor,” and if successful is eligible for the types of relief available to a plaintiff meeting the “but for” standard in a Title VII case. This makes a claim for full damages easier to prove under Connecticut law, that under a companion federal claim.

Employers should continue to ensure that employees are treated equally regardless of their sexual orientation or gender identity/expression, as failing to do so now creates a violation of both state and federal law.