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High Court’s LGBT Bias Blockbuster Headlines Packed Term


July 10, 2020

While the U.S. Supreme Court’s landmark ruling that federal civil rights law protects LGBTQ employees resolved a closely watched question that had been brewing for years, the justices also devoted time this term to workplace law issues like religious employers’ rights and causation standards in civil rights cases.

The LGBTQ rights decision, known as Bostock, was in fact three consolidated cases, two of which involved gay workers and one that centered around a transgender funeral director, all of whom alleged they were illegally fired by their respective employers.

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Here, Law360 looks at five of the high court’s most notable employment decisions this term.

Bostock v. Clayton County, Georgia

The big-ticket item on the high court’s employment law docket during its 2019 term resolved an issue that split federal circuit courts in recent years — whether the part of Title VII of the Civil Rights Act that bans employers from discriminating against workers based on sex encompasses bias based on either sexual orientation or gender identity.

In a 6-3 ruling written by Justice Neil Gorsuch, the high court held that it does, extending the landmark civil rights law’s reach to workers who are lesbian, gay, bisexual or transgender.

Christine Webber, a partner in plaintiffs-side firm Cohen Milstein Sellers & Toll PLLC’s Civil Rights & Employment practice group, said the impact of Bostock is “huge” since “only a few states around the country had adopted state prohibitions of employment discrimination” based on sexual orientation or transgender status.

“So, it’s great to have that protection nationwide and not just state to state,” she said.

Webber said the decision will be felt in employment discrimination cases “across the board,” not just those that deal with sex-based bias, because of the “clarity it brings to the ‘but-for’ standard.”

That causation rule requires plaintiffs to show that allegedly unlawful actions wouldn’t have occurred absent an improper motive on the employer’s part in order for their suits to pass legal muster.

While the high court has addressed the standard numerous times before — including in several other cases this term — Webber said it “often tends to get muddied in the district courts.” But the justices’ articulation of the standard in Bostock “is going to be very important in acknowledging that being the but-for cause does not mean being the only cause.”

“Events often have multiple but-for causes … and the defendant cannot avoid liability just by citing some other factor that contributed to its employment decision as long as one of the but-for factors was sex or any other prohibited basis of discrimination. Then that permits plaintiffs to establish their claim,” Webber said, while adding that the high court’s opinion is “fundamentally interpreting what Title VII requires and that’s going to be true for every basis in which Title VII applies.”

The case is Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia, case number 17–1618, in the Supreme Court of the United States.

Comcast Corp. v. National Association of African American-Owned Media et al.

The issue of but-for causation also came up in a case involving Comcast Corp., with the justices ruling in March that the standard should apply to race discrimination claims brought under Section 1981 of the Civil Rights Act of 1866.

That statute was passed in the wake of the Civil War to prohibit discrimination in the context of contracts. Courts have read it to bar race discrimination in a handful of contexts, including employment and business-to-business contracting.

In a largely unanimous decision — Justice Ruth Bader Ginsburg concurred in the judgment with a caveat — the justices said accusers now must prove discrimination was the defining factor in a contracting decision, not that it played “some role,” as the Ninth Circuit had held in a 2018 decision that cleared a $20 billion race discrimination suit by a Black-owned production studio against Comcast over the latter’s refusal to carry the studio’s channels. The suit settled last month shortly after the high court remanded the case.

“I think virtually all courts that had been applying Section 1981 had applied it with a but-for causation standard,” Webber said. “So … the Supreme Court’s decision doesn’t represent any real change in the law. And I think any concerns that by establishing a but-for standard that it was establishing too high a standard or too unclear a standard should be ameliorated by the court’s language in Bostock articulating exactly what that but-for standard means.”

The case is Comcast Corporation, Petitioner v. National Association of African American-Owned Media et al., case number 18-1171, in the Supreme Court of the United States.

Babb v. Wilkie

Although in a slightly different context, the justices in April also tackled but-for causation when they analyzed a provision in the Age Discrimination in Employment Act that applies to federal workers, saying they need only show that age bias crept into adverse employment actions to successfully prove a claim in court.

In reaching that conclusion, the justices by an 8-1 vote eschewed a standard that calls for federal workers to show that age was the but-for cause of an employment action that is alleged to be discriminatory, as the Eleventh Circuit had ruled when it dismissed a retaliation claim lodged against the U.S. Department of Veterans Affairs by clinical pharmacist Noris Babb.

The ruling interpreted Section 633a(a), which applies to federal sector employees and states that employment actions affecting workers at federal agencies “shall be made free from any discrimination based on age.”

The Eleventh Circuit had revived Babb’s gender discrimination claim under Title VII in 2018, but reluctantly affirmed the dismissal of her age bias claims.

Webber, the plaintiffs attorney from Cohen Milstein, noted that Babb was different than the Bostock or Comcast cases since the statutory language it interpreted was different than the laws in those other matters.

However, Webber noted that the Supreme Court in its decision said that but-for causation does come into play when determining the remedies that plaintiffs in those cases can recover for unlawful behavior, which she says brings Bostock‘s analysis of but-for causation once again into play.

“I think that Bostock‘s really going to have an impact in not only all of Title VII cases but in other employment discrimination cases that incorporate that but-for causation discussion,” Webber said.

The case is Noris Babb, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs, case number 18-882, in the Supreme Court of the United States.

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