Case No. 17-1618 | 8th Cir.
Preview by Michael Fischer, Online Editor
During Gerald Bostock’s decade-long career as a child welfare services coordinator he received positive performance evaluations and many accolades. However, in 2013 he joined a gay recreational softball league which led to criticism by his fellow coworkers. During a meeting with Bostock’s supervisor, some of Bostock’s coworkers made disparaging remarks about his sexual orientation. Shortly thereafter, Bostock was informed that the county would be conducting an internal audit of the program funds for which he was responsible. Bostock was subsequently fired for “conduct unbecoming of a county employee.” Brief for Petitioner at 6, Bostock v. Clayton Cnty., No. 17-1618 (U.S. filed June 26, 2019).
Following his termination, Bostock filed a discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) and filed suit against Clayton County alleging discrimination based on his sexual orientation. According to Bostock, the county had fired him for being gay in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed Bostock’s complaint after it found that his interpretation of Title VII was contrary to circuit precedent. On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s holding, agreeing that according to circuit precedent, Title VII does not prohibit discrimination of the basis of sexual orientation. See Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 Fed. Appx. 964, 964 (11th Cir. 2018) (citing Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017)). Bostock subsequently appealed to the United States Supreme Court, which granted certiorari and consolidated his case with a case bearing similar facts.
The question before the Court is whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, encompasses discrimination based on an individual’s sexual orientation.
Bostock argues that because it cannot be defined without reference to their sex, a person’s sexual orientation is a sex-based classification that Title VII was meant to protect. See Reply Brief for Petitioner at 3, Bostock v. Clayton Cnty., No. 17-1618 (U.S. filed Sept. 10, 2019). Additionally, Bostock contends that sex is not an ambiguous term and that the Court has interpreted the sex discrimination provision expansively to include forms of discrimination not mentioned in the statute. Id. at 4. He further argues that the Court’s precedent demonstrates that sexual orientation discrimination is both associational discrimination and “but for” sex discrimination. Id. at 5, 9. Lastly, Bostock asserts that the statutory history of Title VII requires it to be interpreted broadly to encompass sexual orientation discrimination. Id. at 12, 13.
In response, Clayton County argues that the term “sex,” as used in Title VII, prohibits discrimination only on the basis of gender since terms that are not defined in a statute should be given their contemporary and common meaning at the time the statute was enacted. See Brief for Respondent at 10, Bostock v. Clayton Cnty., No. 17-1618 (U.S. filed Aug. 16, 2019). According to Clayton County, the common meaning of “sex” in 1964 was the characteristic of being either a male or a female. Id. at 12, 13. Furthermore, Clayton County states that the Court has never interpreted Title VII’s prohibition against sex discrimination contrary to the original meaning of sex. Id. at 17. Clayton County also asserts that employment decisions based on sexual orientation are not made because of sex and do not favor one sex over the other because sex and sexual orientation are two distinct terms. Id. at 31, 32. Finally, it argues that Congress did not enact a prohibition in Title VII against discrimination based on sexual orientation through the “subtle device of prohibiting sex discrimination.” Id. at 44.