B&B_logo_red_sm


Toward Equality: Bostock v. Clayton County and the future of the MHRA

By Laura Farley

0920-Rainbow-Tie-300On June 15, 2020, the United States Supreme Court clarified the breadth of workplace protections under Title VII of the Civil Rights Act of 1964: An employer cannot fire or discriminate against an individual because of their sexual orientation or gender identity. The importance of Bostock v. Clayton County cannot be understated, and its nationwide impact is immediate and profound.

But here in Minnesota, those protections already exist under the Minnesota Human Rights Act (MHRA). Indeed, Minnesota was one of the first states to statutorily recognize a claim for “sexual orientation” discrimination in the workplace. 

So does Bostock really matter in Minnesota?

Absolutely.

Although Bostock secures protections against discrimination because of an individual’s sexual orientation and gender identity under Title VII, it also highlights the complications underlying the MHRA’s once-progressive approach to the same protections.

Under the MHRA and Minnesota Supreme Court precedent, “sex discrimination” is distinct from “sexual orientation discrimination,” which includes claims of discrimination because of one’s gender identity. This artificial separation, however, is called into question by Bostock’s holding that sex discrimination undeniably encompasses discrimination based on gender identity and sexual orientation. 

The Supreme Court’s decision in Bostock is a massive win for civil rights, and it should encourage Minnesota to take another step toward equality by amending the MHRA to reflect a more contemporary understanding of sex, sexual orientation, and gender identity. 

Statutory protections against sexual orientation and gender identity in the workplace: Title VII and the MHRA

Both federal and Minnesota laws provide protections against workplace discrimination. The statutory protections, though similar, have undergone different judicial interpretations, largely because Title VII does not expressly define “sex,” whereas the MHRA defines “sex” separately from “sexual orientation.” Analyzing the text of the statutes and their respective interpretations illustrates the importance—for better or worse—of the MHRA’s definition of “sexual orientation.”

Sex discrimination under Title VII before Bostock 
Title VII makes it “unlawful… for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual… because of such individual’s… sex.”1  Accordingly, an employer violates Title VII when it discriminates against an employee based in part on that individual’s sex. But Title VII does not define “sex.” Whether “sex” under Title VII includes gay or transgender individuals was widely debated, ultimately resulting in the circuit split that led to the Supreme Court’s grant of certiorari in Bostock.2 

Although judicial analysis of this question is complex, there are essentially two theories that courts employed to decide whether gender identity or sexual orientation are protected under Title VII: the “plain meaning” theory and the “sex-stereotype” theory of discrimination.3

Under the plain meaning theory of sex discrimination, courts considered whether Title VII’s prohibition of sex discrimination contemplates the prohibition of gay or transgender discrimination as sex discrimination. This theory rests on an interpretation of the ordinary meaning of Title VII. Most federal circuit courts concluded that neither gay nor transgender individuals are a protected class under the plain meaning of Title VII.4 

Under the sex-stereotype theory, courts considered whether gay or transgender discrimination is sex discrimination because it is based on gendered stereotypes. The sex-stereotype theory is derived from Price Waterhouse v. Hopkins,5 in which a female senior manager was denied partnership because she was not “feminine” enough.6 A plurality of the Supreme Court agreed that such stereotypical attitudes constitute sex discrimination under Title VII.7 Despite this landmark decision, federal courts largely failed to extend this theory to gay or transgender individuals, often reasoning that a “gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.”8

Minnesota’s divided approach: Sex discrimination and sexual orientation discrimination
The MHRA takes a different approach. Originally passed in 1955, the MHRA was amended in 1969 to protect employees from employment discrimination “because of” sex.9 The MHRA’s definition of sex is inclusive: “‘Sex’ includes, but is not limited to, pregnancy, childbirth, and disabilities related to pregnancy or childbirth.”10 

The Minnesota Legislature amended the MHRA again in 1993 to expressly prohibit discrimination on the basis of “sexual orientation.” Using a now-outdated definition, the MHRA defines “sexual orientation” as “having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”11 

Notwithstanding the dated language of the statute, the MHRA’s definition of “sexual orientation” includes sexual orientation and gender identity, which conflates and confuses the two distinct concepts.12 Although the fact that the Legislature prohibited sexual orientation and gender identity discrimination was groundbreaking in 1993, its language has proven problematic over time, with the effect of sidestepping (beneficial though long overdue) judicial scrutiny of the definition of “sex” under either a plain meaning or sex-stereotype theory of sex discrimination.

To illustrate these problems, one need look no further than Goins v. West Group.13 Plaintiff Julienne Goins was a transgender woman whose assigned sex at birth was male. Before Goins began working for West Group’s Minnesota office, a group of women complained to their supervisor that they were uncomfortable with Goins using the women’s restroom because they believed Goins was biologically male.14 Goins’s supervisor immediately told her that she could not use the women’s restrooms. Goins voiced her opposition to her supervisor’s directive, but what followed was an incredibly difficult working environment for Goins, who refused to use the male-designated restrooms and went so far as to refrain from eating or drinking during the day to avoid using the restroom altogether. She occasionally used the women’s restroom, though doing so resulted in a warning for violating the restroom policy. Goins complained that she felt harassed as a result of the policy but ultimately resigned from her employment, citing the unwelcome, stressful environment created by West Group’s restroom policy. 

Goins sued her former employer, alleging intentional sexual orientation discrimination and hostile work environment under the MHRA. Her claims were dismissed at summary judgment.

Goins appealed, and the Minnesota Court of Appeals reversed and remanded the district court’s holding.15 Recognizing that the MHRA prohibits discrimination on the basis of gender identity, and “does not require an employee to eliminate [such] inconsistency” between their gender identity and assigned gender at birth, the court of appeals held that Goins established her prima facie case of sexual orientation discrimination under the MHRA because “she was denied the use of a workplace facility based on the inconsistency between her self-image and her anatomy.”16 

The Minnesota Supreme Court accepted review and reinstated the district court’s dismissal on summary judgment.17 The Court—sidestepping fundamental principles of statutory interpretation—avoided a substantive evaluation of the MHRA’s definitions of “sex” and “sex discrimination” under either the sex-stereotype or plain meaning theory. Instead, the Court decided that the restroom policy, based on an employee’s “physical anatomy,” was legal because it was based on “biological sex,” not on “sexual orientation,” which includes gender identity. 

Put another way, Goins essentially used the MHRA’s sexual orientation provision against those it was meant to protect. Goins thus resulted in a judicially created divide between “biological sex” and sexual orientation discrimination under the MHRA, without regard for the federally adopted plain meaning or sex-stereotype theories to interpret the term “sex.”18 This divide remains under the MHRA, but is called into question in light of the U.S. Supreme Court’s June ruling in Bostock.

Bostock v. Clayton County

In Bostock, the Supreme Court granted certiorari on three cases to decide whether an employer can fire an individual because of their sexual orientation or gender identity.19 Each of the cases involved an employer that admittedly fired a long-time employee for no other reason than the employee’s sexual orientation or transgender status. 

The first case involved Gerald Bostock, who was fired for conduct “unbecoming” of an employee shortly after he began participating in a gay recreational softball league. The 11th Circuit affirmed the dismissal of his claims, holding that Title VII does not prohibit employers from firing employees for being gay, based on a plain meaning theory.

In the second case, Donald Zarda was fired days after he mentioned to his employer that he was gay. The 2nd Circuit allowed his claims of discrimination on the basis of sex regarding his sexual orientation to proceed, relying on a theory of sex stereotyping. 

The third case involved Aimee Stephens, who presented as male when hired, but was promptly fired after informing her employer that she planned to “live and work full-time as a woman.” The 6th Circuit allowed her claims of discrimination on the basis of sex as a transgender woman to proceed, relying on a theory of sex stereotyping. 

The Supreme Court, relying on the plain meaning theory, held that an employer who fires an individual merely for being gay or transgender violates Title VII. The Court then bolstered its analysis and explained why its holding was consistent with prior precedent.

Reliance on the ordinary meaning of Title VII
In concluding that gay and transgender individuals are protected from discrimination under Title VII, the Court found that it need only rely on “the straightforward application of legal terms with plain and settled meanings.”20 The Court considered the meaning of three key terms at the time they were included in Title VII back in 1964: “sex,” “because of,” and “discriminate.”   

While the contested definition of “sex” was central to the prior judicial debate over whether Title VII protected against sexual orientation and gender identity discrimination, the Court noted it need not elaborately define sex to reach its decision. Indeed, for the purposes of argument, the parties and the Court conceded that “sex” referred only to biological distinctions between male and female.

So rather than focusing on the definition of sex, the Court shifted its analysis to what Title VII says about sex. Leaning on prior definitions, the Court concluded that “because of” sex means “by reason” or “on account” of sex. This definition invokes the “simple and traditional” concept of but-for causation in disparate-treatment sex discrimination cases, which, as the Court explained, “is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Put simply, if the plaintiff’s sex was one but-for cause of discrimination, that is enough to trigger Title VII’s protections. 

Finally, turning to the term “discriminate,” the Court noted that its definition in 1964 was the same as it is today: treating an individual worse than others who are similarly situated. 

These definitions led the Court to conclude that the plain meaning of the statute creates a straightforward rule: An employer violates Title VII when it fires an individual employee based in part on sex.21 Applied here, an employer violates Title VII when it fires an employee based on their sexual orientation or gender identity precisely because these concepts are “inextricably bound up with sex.”

Bostock’s lessons gleaned from three leading precedents 
Although the Court takes great care to ensure the reader understands that its decision is based on the plain meaning of Title VII, the Court goes further and bolsters its analysis with three “familiar” lessons learned from three prior cases:22 

First, “it’s irrelevant what an employer might call its discriminatory practice.” Second, “the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.” Third, “an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.” 

These three lessons—though not new under Bostock—are incredibly helpful to litigants in analyzing discriminatory practices. Paired with Bostock’s ultimate holding, these lessons leave little room for disagreement. As the Court explained, “Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” and “the consequence of that legislative choice” is clear: “An employer who fires an individual merely for being gay or transgender defies the law.”

Impacts of Bostock on Minnesota litigants and the MHRA

The national impact of Bostock is immediate and far-reaching. The millions of individuals who live in the nearly 30 states without explicit protections for LGBT employees are now protected from discrimination under Title VII.23 But Bostock begs a more difficult question for Minnesota: is it time to revisit the MHRA’s definitions of “sex” and “sexual orientation”? 

Put simply, the answer is yes.

Consider if Julienne Goins brought her claim now, under Title VII and the MHRA. Using Bostock’s guiding principles, the case should come out differently, which magnifies the aforementioned issues in the Goins interpretation of sexual orientation claims under the MHRA. 

In Goins, the Minnesota Supreme Court concluded that an employer’s policy designating restrooms based on “biological gender” is not discrimination against a transgender woman under the MHRA. But the Court made no significant effort to evaluate the plain meaning of “sex” or “sexual orientation” under the MHRA. Bostock fills in this judicial gap. Applying Bostock’s conclusion that gender identity is “inextricably bound up with sex” under the word’s plain meaning, any policy discriminating against a transgender woman based on “biological sex” is plainly sex discrimination, arguably under both Title VII and the MHRA.

An employer may argue that the Goins Court dismissed Goins’s claim because the restroom policy was based on “sex,” not “sexual orientation,” which includes gender identity under the MHRA, so the restroom policy couldn’t be discriminatory. But this, too, is inconsistent with Bostock—discrimination against an individual because they are transgender is sex discrimination under the plain meaning of sex.

Further, consider an employer’s possible pushback: The “restroom policy” is not discriminatory, as it simply requires men to use one bathroom, women another. But this argument does not hold under Bostock, which reminds us that “labels and additional intentions or motivations d[o]n’t make a difference,” because “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.”

This simplified illustration depicts some of the complications Goins creates for claimants who bring a sexual orientation claim under the MHRA simultaneous with a sex discrimination claim under Title VII. 

Despite the fact—or perhaps because of the fact—that Minnesota was an early adopter of civil rights protections on the basis of sexual orientation, Minnesota jurisprudence has come up demonstrably short in applying these protections to the workplace. Still, “[t]he MHRA is to be construed liberally [] with reference to federal law,” and there is always hope for progress.24 Indeed, despite Goins’s failure to address the argument, the MHRA’s definition of “sex” should be interpreted as a broad, inclusive definition, similar to Title VII as articulated in Bostock.

Nevertheless, it is incumbent upon the Minnesota Legislature to amend the MHRA and eliminate the problematic division between “sex” and “sexual orientation” in favor of a new definition of “sex” that also includes protections against discrimination based on sexual orientation, gender identity, and gender expression.25 

Regardless of what claim is brought under which law, this much is clear after Bostock: It is impossible to discriminate against a person for being gay or transgender without discriminating against that individual based on sex, because sexual orientation and gender identity are “inextricably bound up with sex.” 

The best path forward for the MHRA is to amend its definitions of sex and sexual orientation to align with the statute’s purpose—to broadly protect individuals against discrimination. Hopefully, in the wake of Bostock, the Minnesota Legislature will take another necessary step on the long road toward equality. 



LAURA FARLEY is an associate attorney at Nichols Kaster, PLLP. She represents individuals in employment and civil rights litigation


 

1 42 U.S.C. §2000e-2(a)(1).

2 Most cases involve an individual who is discriminated against because of their sexual orientation or because they are transgender. The 2nd and 7th Circuits have recognized protections for individuals based on their sexual orientation and the 6th Circuit has recognized protections for transgender individuals. While separate claims, the Supreme Court analyzed discrimination against gay and transgender individuals jointly, as each status is “inextricably bound up with sex” under Title VII “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).

3 See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (explaining the “per se” or “plain meaning” theory versus the “sex stereotype” theory).

4 See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221–22 (10th Cir. 2007); Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir.1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F.Supp.2d 653, 658 (S.D. Tex. 2008) (collecting cases); Sweet v. Mulberry Lutheran Home, No. IP02–0320–C–H/K, 2003 WL 21525058, at *2 (S.D. Ind. 6/17/2003) (“discrimination on the basis of sex means discrimination on the basis of the plaintiff’s biological sex, not sexual orientation or sexual identity, including an intention to change sex”).

5 490 U.S. 228 (1989).

6 490 U.S. at 235.

7 Id. at 251. Therefore, “an adverse employment decision based on ‘gender non-conforming behavior and appearance’ is impermissible under Price Waterhouse.” Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1039 (8th Cir. 2010).

8 Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006) (affirming dismissal of a Title VII claim and rejecting gay male plaintiff’s sex-stereotyping arguments); Bibby v. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) (rejecting a possible sex-stereotyping theory and holding that gay male plaintiff had no claim under Title VII). 

9 Minn. Stat. §363A.08.

10 Minn. Stat. §363A.02 subd. 42. 

11 Minn. Stat. §363A.02 subd. 44. In an independently problematic clause, the MHRA also states that “‘[s]exual orientation’ does not include a physical or sexual attachment to children by an adult.” The MHRA also includes a variety of exemptions to allow certain entities, like scouting organizations, to discriminate against individuals based on their sexual orientation.

12 For further discussion, see https://www.mnbar.org/hennepin-county-bar-association/resources/hennepin-lawyer/articles/2020/03/04/the-groundbreaking-minnesota-human-rights-act-in-need-of-renovation . “Sexual orientation” can be understood as “an inherent or immutable enduring emotional, romantic or sexual attraction to other people,” whereas gender identity can be understood as “one’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One’s gender identity can be the same or different from their sex assigned at birth.” https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions .

13 635 N.W.2d 717 (Minn. 2001).

14 There was no evidence that any of the women had been in the restroom at the same time as Goins.

15 Goins v. West Group, 619 N.W.2d 424 (Minn. Ct. App. 2000).

16 Id. Likewise, the court of appeals reversed the district court’s grant of summary judgment on the hostile work environment claim, as it “was based primarily on the erroneous conclusion that Goins failed to make a prima face case of sexual orientation discrimination.”

17 Goins v. W. Grp., 635 N.W.2d 717 (Minn. 2001).

18 The Minnesota Supreme Court, of course, is not bound by federal interpretations of Title VII for purposes of its own interpretations under the MHRA. That said, “[t]he MHRA is to be construed liberally [] with reference to federal law.” Id. at 726.

19 Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). The Court refers to sexual orientation discrimination as discriminating against gay or homosexual individuals and refers to gender identity discrimination as transgender discrimination. Id.

20 Although the Court did not rely on a sex-stereotype theory, Price Waterhouse is reinforced by Bostock, which rearticulated that an individual employee’s sex “is not relevant to the selection, evaluation, or compensation of employees.”

21 In reasoning otherwise, the dissent argued for a different definition of discrimination, one that is categorical rather than individual. But, as the Court explained, Title VII’s focus on the word “individual” throughout the operative language is dispositive. 

22 Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Los Angeles Dept of Water and Power v. Manhart, 435 U.S. 702 (1978); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

23 As Justice Alito’s dissent pointed out, the Court’s logic in Bostock should apply to over 100 federal statutes that bar sex discrimination—including crucial provisions in education, housing, and health care. 

24 Goins v. W. Grp., 635 N.W.2d 717, 726 (Minn. 2001).

25 In so doing, amendments should eliminate language stating the State of Minnesota “does not condone[] homosexuality” under Minn. Stat. §363A.27; the offensive language relating to sexual attraction to children under Minn. Stat. §363A.03; and the arbitrary exemptions for nonpublic service organizations, which allows certain entities to discriminate based on sexual orientation. Minn Stat. §363A.20 subd. 3.