Sex and the Supreme Court

Those reading the newspapers know that the Supreme Court recently ruled in Bostock v. Clayton County that employment discrimination based on sexual orientation or gender status is discrimination based on sex. Why is this so? As I have argued for many years, an employer can’t act on the basis of sexual orientation or gender status without first making judgments about sex. Or as the Court put it, “An 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 also discussed causation at length. It emphatically rejected the notion that but-for causation means sole cause, primary cause, dominant cause or anything of the sort. All that is required is that the prohibited criterion made a difference.

What Arlington v. FCC means for employment law

The Supreme Court’s decision in Arlington v. FCC is helpful both to employees and to the United States Equal Employment Opportunity Commission.  In Arlington, a six justice majority held that federal courts owe “Chevron deference” to how an administrative agency interprets its own jurisdiction.  “Chevron deference” essentially means that a court must defer to an agency’s interpretation of a statute, even if the court believes the agency made a mistake.  So long as the agency’s interpretation is not “arbitrary or capricious” – that is, patently contrary to the statute itself – its interpretation has the full force and effect of law.  Chevron deference has been around for a long time, but Arlington is the first Supreme Court case to hold that agency interpretations of agency jurisdiction are entitled to it.

Why should employees (and employers) care about the case?  Because it means the EEOC can largely determine the scope of its enforcement jurisdiction over the civil rights laws.  Lots of employment cases rise and fall on the application of EEOC regulations to the facts.  When those regulations support employees, employers often challenge them as having exceeded the scope of the EEOC’s regulatory jurisdiction. Arlington means that federal courts can no longer review such challenges from scratch (or in legal terms, de novo).  Rather, they must afford substantial deference to the EEOC’s decision that it had the power to issue the regulation.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.