On June 15, 2020, the Supreme Court of the United States (SCOTUS) issued a landmark decision for gay, lesbian, and transgender employees regarding the scope of protections afforded to them under Title VII of the Civil Rights Act of 1964 (Title VII).
In a 6-3 decision authored by Justice Neil Gorsuch in a trio of consolidated cases—Bostock v. Clayton County, GA, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission1—SCOTUS found that the plain meaning of Title VII’s prohibition making it illegal for an employer to discriminate against an individual employee “because of such individual’s . . . sex,”2 was sufficiently broad to prohibit an employee from being discharged merely for being gay or transgendered.3
Given the manner in which its interpretation of Title VII expanded the protection for gay, lesbian, and transgender employees in the workplace, Bostock was immediately recognized as a seminal employment law decision by practitioners and commentators. However, the decision—more precisely, the reasoning behind the decision—and the requirement for an individualized determination of Title VII-based claims, could also have far-reaching implications for other types of discrimination actions.
Recently, relying on Bostock, a panel of the Tenth Circuit Court of Appeals determined in Frappied v. Affinity Gaming Black Hawk, LLC4 that “the class of sex-plus claims cognizable under Title VII is broader” than previously recognized in that court’s 1997 decision in Coleman v. B-G Maintenance Management of Colorado, Inc.5
Title VII makes it unlawful for an employer to “discharge any individual . . . because of such individual’s race, color, religion, sex or national origin.”6 Moreover, SCOTUS has long held that Title VII also prohibits discrimination based upon either a combination of protected characteristics—such as “race plus national origin” discrimination (i.e., discrimination targeting only employees of a specific race from a particular country)—or a protected characteristic combined with a characteristic not protected under the statute, such as a policy directed against women having school-age children.7
Like the Supreme Court, the Eleventh Circuit has long recognized the existence of sex-plus or gender-plus claims, in which the alleged discrimination combines protected characteristics.8 Courts in the Circuit have also long recognized the existence of gender-plus discrimination claims, “which involve[d] the ‘classification of employees on the basis of sex plus one other ostensibly neutral characteristic.’”9 However, relying on the Tenth Circuit’s Coleman decision, courts within the Eleventh Circuit have also employed a “heightened standard” for assessing whether such claims exist, requiring plaintiffs to show that “they were treated differently from similarly situated members of the opposite gender.”10
In Coleman, the Tenth Circuit had determined that a gender-plus plaintiff “must still prove that the subclass of women was unfavorably treated as compared to the corresponding subclass of men.”11
In other words, a gender-plus plaintiff was required to identify that he or she belonged to a subclass that was unfavorably treated as compared to a corresponding opposite gender subclass, or that the alleged discriminatory policy applied to an entire subclass. However, in Frappied, the Tenth Circuit recognized that Bostock changes the manner in which Title VII claims are to be reviewed, removing the requirement to show discrimination against an entire subclass.12
As the Bostock Court explained, Title VII requires that the employment discrimination inquiry be an individual one:
[I]t doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.13
Relying on this portion of Bostock, the Tenth Circuit indicated that in sex plus discrimination claims, a plaintiff no longer needs to show that he or she belonged to a subclass that suffered from unfavorable treatment; rather, it is sufficient for the plaintiff to show that the employer treated that person unfavorably relative to an opposite gender employee who shares the “plus” characteristic.14 It is likely that courts in the Eleventh Circuit will also adopt this expansive view of gender plus claims in light of the Bostock and Frappied decisions and will remove the “heightened standard” applied to these claims. Of course, a plaintiff in a gender-plus action must still identify the “plus” characteristic sufficiently so as to find a comparator.
Finally, in light of the Tenth Circuit’s reasoning, practitioners may want to look to the Bostock individualized review standard in assessing other types of Title VII-based claims, not just those involving gay, lesbian, or transgender employees.
Aaron Tandy heads Pathman Schermer Tandy, LLP’ employment law practice. Contact him at atandy@pathmanlewis.com.
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1 140 S.Ct. 1731, 2020 U.S. LEXIS 3252 (Jun. 15, 2020) (consolidating No. 17-1618 (Bostock), No. 17-1623 (Zarda) and No. 18-107 (R.G. & G.R. Harris Funeral Homes).
2 Id. at 1739.
3 Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1047 (10th Cir. 2020).
4 42 U.S.C. § 2000e-2(a)(1).
5 See, e.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982) (recognizing Title VII violation where employer’s policy discriminated on the basis of sex-plus race); Phillips v. Martin Marietta Corp., 400 U.S. 542, 543 (1971) (employer violated Title VII by having separate hiring policies for women and men each having pre-school age children).
6 See, e.g., Mosley v. Ala. Unified Judicial Sys., 562 Fed. Appx. 862, 866 (11th Cir. 2014) (acknowledging circuit’s long time practice of recognizing sex-plus race discrimination claims).
7 Llana-Aday v. Dist. Bd. of Trs. of Miami-Dade College, 2012 U.S. Dist. LEXIS 164059, at *15-16 (S.D. Fla. Nov. 12, 2012) (quoting Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1089 (5th Cir. 1975).
8 See, e.g., id., at *16 (quoting Coleman).
9 Coleman, 108 F.3d at 1203.
10 Frappied, 966 F.3d at 1047.
11 Bostock, 140 S. Ct. at 1741.
12 Frappied, 966 F.3d at 1047.