June 03, 2021

The U.S. Supreme Court’s 2020 EEO Jurisprudence

Two Decisions that Matter and One that Probably Doesn’t


In 2020 the United States Supreme Court issued three decisions relating to EEO Law. One was extremely important (Bostock v. Clayton County, GA, 140 S. Ct. 1731), one was pretty important (Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049); and one was pretty unimportant (Babb v. Wilkie, 140 S. Ct. 1168).

Justice Gorsuch’s majority opinion for six Justices in Bostock held that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The Court made explicitly clear that it is irrelevant that a prohibition on the basis of sexual orientation or transgender status was never anticipated by the Congress that passed Title VII. “[M]any, maybe most, applications of Title VII’s sex provision were ‘unanticipated’ at the time of the law’s adoption.”

The Court reaffirmed that “because of” ordinarily means “but for” causation; “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” The Court acknowledged that “but-for” can be a “sweeping standard” that includes multiple causes. “[T]he adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”

Significantly, the Court observed that Title VII prohibits discrimination against individuals as opposed to groups or categories of individuals. As a consequence, “[i]t’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex.” (Emphasis original). An employee doesn’t have to prove that the employer discriminates against all women or men, only the employee bringing the claim. An employer who treats men and women equally but discriminates among both women and men because of sex-related characteristics doubles its liability.

Discrimination because of sexual orientation or transgender status unavoidably discriminates on the basis of sex, the Court said, because the employer would have treated an employee of the opposite sex differently under the circumstances. It does not matter that another causal factor may also be at play. Intentional discrimination based on sex violates Title VII even if it is intended to achieve the employer’s ultimate goal of discriminating based on sexual orientation or transgender status. If “changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Again, it simply does not matter that the employer doesn’t perceive itself as motivated by a desire to discriminate on the basis of sex.

Bostock expressly left open how the Court would analyze a discrimination claim against a religious employer. Our Lady of Guadalupe School gave an answer to that question at least as far as religious-school teachers are concerned. The Court ruled 7-2 that such teachers cannot bring claims for EEO discrimination. Justice Alito explained that the purpose of the First Amendment’s so-called “ministerial exception” is to protect the autonomy of religious institutions with respect to internal management decisions that are essential to the institutions’ central mission, in particular the selection of the individuals who play certain key roles.

Hosanna-Tabor Evangelical Luther Church and School v. EEOC, 565 U.S. 171 (2012), had made four circumstances relevant—the employee’s title, religious training, whether the employee held herself out as minister, and whether the employee’s job duties reflected a role in conveying the institution’s message and mission. The Our Lady of Guadalupe School Court cited the Hosanna-Tabor concurrence’s emphasis on the function rather than labels or designations and held the Hosanna-Tabor factors are not inflexible requirements or a “rigid formula,” and “[w]hat matters, at bottom, is what an employee does.”

After reviewing the importance of religious education in several faiths, the majority reasoned that “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” The Court found that the teachers here were responsible for providing instruction in all subjects, including religion, and were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. Even though their titles did not include the term “minister” and they had little formal religious training, they both had their core responsibilities as teachers of religion.”

The Court rejected the plaintiffs’ assertion that that ministerial exception should be limited to members, practicing
or otherwise, of the religion with which the school is associated.

Finally, Babb involved the federal sector provision of the ADEA, which provides that personnel actions “shall be made free from any discrimination based on age.” Writing for all but Justice Thomas, Justice Alito held the plain text of the statute established “that age need not be a but-for cause of an employment decision in order for there to be a violation . . .” “If age discrimination plays any part in a way a decision is made, then the decision is not made in a way that is untainted by such discrimination.”

The Court went on to hold that proof of but-for causation would determine the appropriate remedy. “[P]laintiffs who demonstrate that they were only subject to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or any other forms of relief related to the end result of an employment decision.” The Court found such a plaintiff who could not show but-for causation could receive only “injunctive or other forward-looking relief.”

Mike Subit

Frank Freed Subit & Thomas

Mike Subit is a partner at Frank Freed Subit & Thomas in Seattle. He represents plaintiffs in employment matters and unions in labor matters, in both individual cases and class actions.

Randy Coffey

Fisher Phillips LLP

Randy Coffey is a partner in the Kansas City
office of Fisher Phillips LLP. He regularly provides advice and counsel to employers in all aspects of employment law, and litigates class and individual discrimination cases under federal and state law, as well as FMLA and wage and hour matters. Randy has tried more than 30 lawsuits during his career.