The Bostock decision on LGBTQ rights under Title VII of the 1964 Civil Rights Act was a civil rights victory long coming. From the American perception of same sex marriage to LGBTQ rights, the country took a mighty swing to a new direction since the 1990s when the Defense of Marriage Act was enacted by Congress under the Clinton Administration. The decision itself was groundbreaking in that it was a 6-3 decision with two of the “conservative” justices voting with the liberal wing. Justice Gorsuch, a Trump appointee, authored the decision.
However, the decision will likely be notable for redefining the legal standard for “but-for” causation theory. Justice Gorsuch described what workers must show to win job bias cases under laws that use but-for causation and expanded the meaning. Title VII specifically states that discrimination "because of such individual's race, color, religion, sex, and national origin" is illegal.
The Supreme Court had ruled in the past that the Age Discrimination in Employment Act of 1967 (ADEA) and Title VII's anti-retaliation provisions make it illegal for employers to discriminate "because of" certain traits or actions, and the ADA "on the basis of" disability when proof of “but for” causation is shown. It could not be one factor of many or the primary factor of multiple factors impacting the employee, but the primary and sole factor causing the discrimination. The Gorsuch decision changed the Supreme Court’s prior rulings.
Justice Gorsuch wrote in the majority decision that sex in this case is a “but-for” factor even when it is not the only factor. In other words, he appears to have muddied the waters by equating a “but-for” situation and making it one of many factors. For example, Justice Gorsuch wrote that an employer who fires a woman who is a Yankee’s fan (but not a Tigers fan) will be ruled discriminatory if that policy is enforced. Justice Gorsuch wrote that “[c]arrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.”
More specifically, Justice Gorsuch wrote that “[w]hen an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”
Justice Gorsuch then states that “[i]ntentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees – 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.”
This decision now becomes a game changer for employment laws that courts that were using a strict “but-for” approach. Alan Kabat, a Bernabei & Kabat PLLC attorney who represents workers in discrimination cases, said he expects plaintiff attorneys to cite the ruling "in almost every summary judgment opposition where the employer says 'we have some other reasons for firing the person.'"
Not all attorneys agree, especially management side, but Kabat believes that "[m]ore cases will go to trial." Even if the employer is able to present evidence that 'Oh, we had another reason' ... the jury is still going to be able to weigh those reasons and figure out what would be an appropriate verdict."
Therefore, HR really has its work cut out. Depending on how discrimination lawsuits are ruled on after this case, there may likely be more lawsuits going to trial, and the employer has to be better armed with prevention. HR must train the workforce, not only in discrimination and harassment but also in contributing to a respectful workplace. This training should be conducted during onboarding as well as annually for all employees. Exit interviews will increase in importance for tracing potential problems. Moreover, HR must now police employees’ actions and words as proof of employee diligence. Given everything, it may be a whole new world in the area of EEO law.
Source: Law360 6/19/20