One Year After Bostock – the Practical Implications of the Supreme Court’s Landmark Decision

By: Jack E. Moran

A recent decision from an appellate court shows that there is language embedded within a U.S. Supreme Court decision from one year ago that may change how courts determine if employers can be liable for discrimination and retaliation in the workplace.  While plenty has already been written about the decision in Bostock v. Clayton County, most of the commentary on Bostock (understandably so) focused on how the U.S. Supreme Court had significantly extended Title VII antidiscrimination rights to members of the LGBTQ community.

In doing so, Justice Neil Gorsuch (who wrote the Court’s opinion) discussed how Title VII makes it illegal to discriminate against employees “but for” their sex or gender.  The Court said that there could be “multiple but-for causes” for firing an employee, but as long as one of the causes could constitute illegal retaliation or discrimination, then the termination itself is against the law.

A week ago, the Sixth Circuit Court of Appeals (which takes appeals from Ohio, Michigan, Kentucky, and Tennessee) held in favor of an employee in an anti-retaliation case called Peterson v. W. TN Expediting, Inc.  There, the employee had been fired shortly after she complained about discrimination.  In its opinion, the court referenced the Bostock decision and its definition of a “but for” cause.  In explaining “but for” causes, the court noticeably went beyond the facts of the case and wrote:

Suppose, for example, that during an investigation of an employee’s discrimination complaint, the employer learns by happenstance that the employee has engaged in egregious criminal misbehavior like embezzlement or fraud. If the employee proves that the employer would not have uncovered these misdeeds “but for” the employee’s protected complaint, would the termination of the employee for them violate Title VII?

Seemingly without reason, the Sixth Circuit has essentially called into question whether an employer can terminate an employee based on “egregious criminal misbehavior,” depending on how the employer uncovered the behavior.  After posing this curious question, the court simply wrote that it “need not consider the point further” given the circumstances of that case.

Perhaps the Sixth Circuit (or another court) will clarify this point in the near future.  In the meantime, however, employers should be careful in determining, documenting, and communicating the reasons for terminating an employee.  To take a simple example, suppose an employee is accused of discrimination in the workplace.  Title VII makes it illegal to discriminate against an employee because he participates in an investigation.  During the employer’s investigation, the accused employee denies that he ever discriminated.  Following the investigation, the employer concludes that discrimination occurred, and that the accused employee was less than honest during the investigation, and that the accused employee has not been receptive towards the investigation’s findings and will not improve.  Can the employer terminate the employee for his participation in the investigation?  After all, that would mean the “but for” cause of the employee’s discharge was participation in an investigation, which Title VII makes illegal.

To safeguard against such issues:

• Employers should make sure all significant personnel decisions (hiring, firing, demotions, etc.) are not related in any way to a characteristic or event that triggers legal rights;
• If an employee has been involved in any way in a complaint, grievance, or investigation, be sure that any personnel decision made afterwards cannot be made in a way that creates exposure for the employer;
• If in doubt about whether a personnel decision may create legal exposure, the employer should consult with an employment attorney who is up to speed on the latest legal developments.

Jack Moran is an attorney at the Cleveland, OH-based law firm McCarthy, Lebit, Crystal & Liffman.