Note on Bostock v Clayton County, Georgia

August 2021, by Mike Videler1

Three in One
Bostock v Clayton Count, Georgia 590 US ___ (2020) is a court case concerning employment discrimination
on the basis of sex. In fact, the Bostock case before the US Supreme Court consists of three ‘joined’ cases.2
Two concern a claim of individuals who were gay and fired for that reason; the third is about the firing of
a transgender person. These three different cases are united in the Supreme Court decision of 15 June
2020 by the legal question they raise: does the prohibition of employment discrimination because of sex,
inserted in Title VII of the Civil Rights Acts of 1964, cover discharges executed because of an employee’s
sexual orientation and gender identity?
The underlying fact pattern of these cases, to the extent relevant here, is as follows. The first
concerns Gerald Bostock, who was employed as a child welfare advocate by Clayton County, Georgia
(hence the case title). Having joined a gay recreational softball league, his employer discharged him for
conduct unbecoming a county employee. The second case is that of Donald Zarda, a skydiving instructor.
After mentioning that he identified as gay, he was fired by his employer, Altitude Express in New York.
And finally, Aimee Stephens was fired by R. G. & G. R. Harris Funeral Homes in Garden City, Michigan,
after informing her employer in a letter that she planned to ‘live and work full-time as a woman’, having
initially been hired when identifying as a man. In all three cases, a long-time employee was discharged
after revealing their sexual orientation or gender identity to their employer.3

Prior Litigation
The three discharged employees brought Title VII claims, on the ground of unlawful discrimination on the
basis of sex, before their federal district courts (courts of first instance). With these cases arising in
different parts of the US, appeals were ultimately brought before three different courts of appeals: that
of the Eleventh (Mr. Bostock’s case), Second (Mr. Zarda’s case), and Sixth Circuits (Ms. Stephens’ case).
However, these Appellate Courts produced conflicting judgments, with the Eleventh Circuit holding that
sexual orientation discrimination (Mr. Bostock) is not covered by Title VII protection, while the Second
and Sixth Circuits found that discrimination because of sexual orientation (Mr. Zarda) and gender
discrimination (Ms. Stephens) does violate Title VII. The Supreme Court granted writs of certiorari (i.e.
leaves to appeal the decisions of the Circuit Courts) in order to resolve the conflicting legal approaches of
the Circuit Courts with regard to the scope of the protection that Title VII offers to gay and transgender
persons in the workplace.

The Supreme Court’s Decision: It All Comes Down to Interpretation

Consequently, the Supreme Court set out to answer the question whether employment discrimination on
the basis of sexual orientation and gender identity is covered by Title VII’s prohibition of discrimination
because of sex. Justice Gorsuch, writing for the majority, answered that question in the affirmative.
Therefore, all three litigants ought to be granted protection under Title VII.
In reaching this decision, the Court dealt with a number of legal issues. Title VII, §2000e–2(a)(1)
states that it is ‘unlawful […] for an employer to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or

1
PhD Candidate in law at the European University Institute and external instructor of contract law at HEC Paris.
2
In some jurisdictions, cases can be joined when they concern similar or related legal questions. It means these cases
will be dealt with in a single procedure.
3
Mr. Zarda and Ms. Stephens passed away while their cases were being decided by the courts. Their estates
continued litigating, however, seeking to benefit the heirs.

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privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’ This
norm raised some questions of interpretation: what do these words mean and how do they effect the
case at hand?4 The Court, by means of its majority opinion, made clear that it ‘normally [when words are
unambiguous] interprets a statute in accord with the ordinary public meaning of its terms at the time of
its enactment.’ This means going back to 1964 and determining what the ‘ordinary public meaning’ was
of the relevant legal terms. This method is known as textualism and tells us to stick to the words of the
law rather than seeking out the intentions of the legislator or some other goals underlying legislation such
as the Civil Rights Act of 1964.

Seeing as the court had dealt with ‘disparate treatment’ cases under Title VII prior to Bostock, the Court
had already recognized some terms as having a certain meaning. Relying on a dictionary definition and
previous judgments, to ‘discriminate against someone’ essentially meant what it meant in 1964, i.e.
treating someone worse than someone else in a similar situation. An important part of ‘discriminating
against someone’ as meant in Title VII is that it be done intentionally.
The Court was faced with the argument from counsel for the employers that discrimination in
Title VII concerns categorical rather than individual treatment. That is, Title VII would – according to the
employers – require the Court to find out whether the employers treat a certain group, category, or class
(e.g. Muslims) the same way as another (e.g. Protestants). The Court, however, would not have it. It
referred to the threefold reference to individuals in the section being interpreted, adding that ‘the
meaning of “individual” [in 1964] was as uncontroversial as it is today’, namely a particular being separate
from a class. This means that the employers cannot escape liability by saying – hypothetically – that overall
they treat Muslims the same as Protestants, even though a particular Muslim had been fired because that
specific employee wanted to pray during the workday.

Perhaps the most interesting part of the case concerns the interpretation of discrimination ‘because of
sex’.5 This phrase has two parts. The first is ‘sex’ as a discriminatory reason for firing an employee. In the
three cases before the Court, the employers acknowledged that they had fired their employees because
of their sexual orientation or gender identity. Are we then talking about discrimination on the basis of
‘sex’? Yes, the Court said. These discriminations could only take place because of the employees’ sex. If
the employees’ sex were different and all other facts kept constant (ceteris paribus), no discrimination
would have taken place. For instance, had Gerard Bostock been a woman attracted to men, the employer
would not have fired Gerard. Similarly, had Ms. Stephens been a woman living life as a woman, the
employer would not have fired Ms. Stephens. So while sex is not identical to sexual orientation or gender
identity, the discrimination complained of in this case could only take place because of the central role of
the employees’ sex.
The second aspect of ‘because of sex’ concerns the words ‘because of.’ The Court explains that
‘because of’ indicates a but-for causation test. The but-for causation test tells us that a cause for firing
someone (e.g. that person’s sexual orientation) must have been a decisive reason for that firing. This
means that without that reason, the firing would not have taken place. In that sense, the firing happened
but for that reason. However, the Court is quick to point out that sex need not be the only reason for firing
someone in order for Title VII to provide protection to the employees. It may very well be possible that
someone is fired because of their sexual orientation and for the sports teams they support. This does not
take away liability from the employer. In this sense, it also does not matter what the reason is called. An
employer can say that they fired an employee for the hideous clothes they wear, but if it turns out that
someone was also discriminated against because of sex (a woman was fired for wearing hideous clothes

4
We will return to the issue of interpretation, this time of contracts, in session 8.
5
‘Sex’ was the only basis for discrimination found in Title VII that the employees relied on in their cases.

2
while an equally badly dressed man could keep his job), this would still be prohibited discrimination under
Title VII.

Some Final Thoughts: Contract Law, the Limits of Title VII, and the Conservative Split
Bostock is not a case directly dealing with contract law. Rather, it concerns claims from employees for
discrimination pursuant to the Civil Rights Act of 1964. Nonetheless, the contractual implications are
visible. In all three cases under review, the employees had a contract with their employer and this contract
was terminated because of the employees’ sexual orientation or gender identity. The Court made it clear
in Bostock that such discharges exposed the employers to liability under Title VII. Thus, we can identify an
interference with the freedom of contract.6
Nonetheless, we have to place some caveats next to this conclusion. First, we are dealing with
federal law here, i.e. the Civil Rights Act of 1964 is a federal law and Bostock was decided in federal court.
States might have different laws in place, which could for instance offer more rigorous protection against
discrimination. Moreover, it is striking that Bostock does not revolve around issues of religious liberty,
since the employers did not rely on such arguments before the Supreme Court.7 The Court itself explains
that there might be situations in which religious liberty trumps discrimination on the basis of sex, for
instance where it concerns sexual orientation or gender identity.8 What is more, there are limits to the
application of the Civil Rights Act. It applies to employers with a minimum of fifteen employees, as well as
local, state, and federal government employees. However, employees working for an employer with fewer
than fifteen employees, uniformed military, and ministerial employees (i.e. working for religious
organizations) are not protected by the Act.

What took some legal observers especially by surprise in this case was that two members of the Court’s
conservative block voted with the majority in this case. Justice Gorsuch, President Trump’s first
appointment to the Court, even wrote the Court’s opinion. 9 Whereas the law and its institutions are
presumed and declared to be neutral, Justice’s conservative or progressive tendencies and preferences
can often be identified quite clearly in the Justices’ individual opinions and voting patterns. Such
tendencies and preferences come out through justices’ individual opinions and their voting patterns. In
this case, the conservative block on the Court’s bench was split over the correct textual way of interpreting
the Civil Rights Act of 1964. The opening sentence of the scathing dissent by Justice Alito, also writing for
Justice Thomas, is emblematic: ‘There is only one word for what the Court has done today: legislation.’

6
This is a cornerstone of modern contract law in many jurisdictions. We will come to talk about it in more depth in
session 4.
7
The funeral home owner for which Ms. Stephens worked was said to be deeply religious and relied on this in earlier
litigation.
8
The majority opinion refers to for instance the First Amendment of the US Constitution, which guarantees freedom
of religion. Moreover, it identifies the Religious Freedom Restoration Act of 1993 (RFRA) and the ‘express statutory
exception for religious organizations’ included in the Civil Rights Act itself as potentially giving rise to religious
defenses. However, those issues were not before the Court in Bostock.
9
The other conservative member of the Court is Justice Roberts. Together with the Court’s four progressive
members the vote was 6-3. Justice Kavanaugh, President Trump’s second appointment, attached his own dissenting
opinion.