Bostock v. Clayton County, Georgia

TITLE VII’S PLAIN LANGUAGE MEANING OF “SEX”

Bostock asserts that the plain language of Title VII’s clause “because . . . of sex” prohibits sexual orientation discrimination because it is a form of sex discrimination. Bostock argues that an employer must first ascertain an employee’s sex before determining the employee’s sexual orientation. Therefore, Bostock contends that any discrimination based on sexual orientation inherently relies on a consideration of sex which Title VII prohibits.

Bostock also asserts that discrimination based on an employee’s association with a person of the same sex is a form of sex discrimination.According to Bostock, when an employer discriminates against an employee for associating with a person of the same sex, the employer is effectively discriminating against the employee because of the employee’s sex. Bostock further contends that discrimination against an employee for declining to abide by sex stereotypes amounts to sex discrimination. For example, Zarda emphasizes that an employer who discriminates against an employee for not being attracted to members of the opposite sex engages in sex discrimination because it discriminates against the employee for failing to have a sex-based trait.

Clayton County counters that the original public meaning of “because . . . of sex” only prohibits discrimination on the basis of sex, not sexual orientation. Clayton County asserts that the interpretation of sex must be based on a common, ordinary understanding of the term as Congress would have read it at the time that Title VII was enacted, in 1964. Additionally, Altitude Express argues that otherwise the Court would be rewriting the statute, a task that should be exclusively within Congress’s purview. Accordingly, Clayton County contends that the Court should interpret Title VII based on the public’s understanding at the time that it was originally enacted in 1964, rather than rely on a present-day interpretation. Consequently, Clayton County argues that at the time of Title VII’s enactment in 1964, sex was commonly understood as the trait of being male or female and did not refer to sexual orientation.

Even if the Supreme Court were to rule on the meaning of sex based on a present-day interpretation, Clayton County asserts that the meaning of sex in 1964 has retained the same meaning that it has today. Moreover, Clayton County rejects Bostock’s argument that sexual-orientation discrimination depends on an employee’s sex and is thus prohibited by Title VII because sex and sexual orientation are distinct terms and are not commonly conflated with one another. Furthermore, since sex is listed alongside other traits and characteristics in Title VII—race, color, religion, and national origin—rather than behaviors, Clayton County maintains that Title VII only prohibits discrimination on the basis of a sex-based trait—being male or female—rather than sexuality.

TITLE VII’S STATUTORY HISTORY AND CONTEXT

Bostock contends that Title VII’s statutory history and context indicate that the clause “because . . . of sex” prohibits discrimination on the basis of sexual orientation. Bostock explains that Congress’s understanding of “because . . . of sex” has evolved over time, first in 1978 after it passed the Pregnancy Discrimination Act in response to the courts’ narrow interpretation of Title VII, and again when it amended Title VII in 1991 to reflect the Supreme Court’s broader interpretation of the relevant language. Specifically, Bostock argues that before 1991 the Supreme Court had previously held in a string of cases that discrimination “because . . . of sex” encompassed more than the statute’s explicit types of discrimination, and Congress implicitly incorporated those rulings by not altering the relevant language of the Civil Rights Act of 1991. Additionally, Zarda asserts that Title VII goes beyond what Congress originally contemplated in 1964 as discrimination “because . . . of sex,” especially in light of the Court’s decision in Oncale v. Sundowner Offshore Services, Inc. to extend sex-based discrimination to include other “reasonably comparable evils.”Moreover, Bostock notes that the Oncale decision was in line with the Supreme Court’s trend of interpreting statutory language more broadly than Congress’s original understanding at the time of enactment.

Clayton County argues that Title VII’s statutory and judicial history suggests that the Court should interpret Title VII consistent with the original public meaning of sex. Altitude Express also asserts that Title VII’s original public meaning of sex was to prevent the disparate treatment of men and women, not to forbid sexual-orientation discrimination. Additionally, Clayton County contends that the Oncale decision reaffirmed Title VII’s original public meaning: to prohibit disadvantageous employment conditions for one sex. Furthermore, Clayton County argues that Bostock’s line of cases do not support interpreting sex more broadly, but instead affirm Title VII’s original meaning. For example, it stresses that none of these cases involved sexual-orientation discrimination, but rather instances of unequal treatment because the employee was male or female.

CONSISTENCY OF THE BROADER STATUTE

Bostock asserts that interpreting Title VII to not cover sexual orientation discrimination would conflict with § 2000e-2(m) in Title VII which prohibits employment practices motivated by both legitimate and illegitimate considerations, including race, color, religion, sex, or national origin. Specifically, Bostock explains that because sexual orientation is dependent on sex, a decision discriminating based on sexual orientation involves an illegitimate motive—an employee’s sex—violating § 2000e-2(m). Thus, Bostock argues that it would be inconsistent for Title VII to contain both § 2000e-2(m) prohibiting employment practices that consider sexual orientation and § 2000e-2(a) language “because . . . of sex” allowing for sexual-orientation discrimination in the workplace.

Additionally, Zarda contends that because sexual-orientation discrimination is a subset of sex discrimination, the two are sometimes confused. Similarly, Bostock asserts that courts have produced confusing and conflicting decisions because they struggle to distinguish between sex-motivated decisions and sexual-orientation discrimination. Bostock explains that the resulting Title VII jurisprudence has led to unpredictable court decisions and invasions of privacy when determining employees’ sexual orientation—both of which were likely not Congress’ intended outcomes.

Clayton County counters that there is no clash between § 2000e-2(a) and § 2000e-2(m). It stresses that the § 2000e-2(m) provision—which proscribes employment decisions motivated in part by sex—determines the extent to which discrimination was based on sex, not the means to define sex discrimination. In support of this argument, Altitude Express argues that § 2000e-2(m) does not define what is encompassed in sex-based discrimination, but rather establishes a causation standard regarding which types of motives qualify as impermissible sex discrimination. Clayton County asserts that because sexual-orientation discrimination does not depend on sex, sexual orientation is not an illegitimate consideration, and therefore does not violate § 2000e-2(m).

Furthermore, Clayton County argues that interpreting Title VII to permit sexual-orientation discrimination is workable for lower courts’ analysis and decision-making. According to Clayton County, the confusion around the distinction between sex-stereotype discrimination and sexual-orientation discrimination stemmed from the lower courts’ misapplication of past Supreme Court cases. Clayton County notes that despite the lower courts’ confusion, the proper remedy is disseminating further guidance to those courts, not reinterpreting Title VII to forbid sexual-orientation discrimination.