Title VII

In a 6-3 decision in Bostock v. Clayton County the Supreme Court held that gay and transgender employees may sue their employers under Title VII for discriminating against them because of their sexual orientation or gender identity. Title VII of the Civil Rights Act of 1964 outlaws employment discrimination on the basis of race, color, religion, sex, and national origin.

This case will significantly affect states and local...

In Comcast v. National Association of African-American Owned Media the Supreme Court held unanimously that a plaintiff who sues under 42 U.S.C. §1981 must plead and prove that race was the but-for cause of his or her injury. This case is particularly relevant to states and local governments as employers. The but-for causation is a standard favorable to employers.

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When the lines are long and the protesters loud, predicting the path the Supreme Court might take is a perilous practice. Especially if the Justice who voted most in the majority last term—Justice Kavanaugh—is nearly silent.

And yet…when the lawyer arguing that gender identity is covered under Title VII, David Cole, spends most of him time explaining how the case the Court will decide after he wins should be decided—it is hard to suspect his hasn’t already won.

The title of this article appears to be deceptive if not flat out wrong as Comcast Corp. v. National Association of African American-Owned Media isn’t an employment case. Nevertheless, it presents an important legal question for employers because the law it involves applies to them as such. Understanding the issue in the case—whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation—requires a little background.

Section 1981, enacted in 1866, prohibits discrimination on the basis of race in contracting and employment, among other things. It states “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”

Before an employee alleging employment discrimination under Title VII (on the basis of race, color, religion, sex, or national origin) may bring a lawsuit in federal court he or she must file charges with the Equal Employment Opportunity Commission (EEOC).

In Fort Bend County, Texas v. Davis the Supreme Court held unanimously that Title VII’s charge-filing requirement is a “mandatory procedural prescription” that a court must consider if timely...

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