The United States Supreme Court held this month that the protections of Title VII of the Civil Rights Act of 1964 extend to protect against discrimination against individuals based on sexual orientation or identity, i.e. those of gay or transgender status. The decision, Bostock v. Clayton County Georgia, will expand the scope of Title VII, which is the federal statute that protects against discrimination in the workplace. Prior to Bostock, some state’s anti-discrimination laws, such as New Jersey’s Law Against Discrimination, already recognized gay and transgender individuals as a protected class. However, the expansion of these protections to the federal anti-discrimination law will mean that for the first time such discrimination is unlawful in all 50 states.
The majority opinion was written by textualist and Trump appointee Neil Gorsuch, joined by Chief Justice Roberts as well as Justices Ginsburg, Kagan, Sotomayor, and Breyer. Gorsuch’s opinion holds that the plain language of Title VII requires this result, which makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” Discrimination against gay a transgender individuals is discrimination on the basis of “sex,” the majority of opinion holds. The Court reached its holding over the dissents of Justices Samuel Alito and Kavanaugh, who accused the majority of seeking to update the statute without plausible authorization in its language in order conform with more contemporary views of sexual orientation and gender identity. Nonetheless, the majority held that discrimination against gay and transgender individuals is sex-based discrimination, and also professed strict adherence to the textualist doctrine that Judges may not “remodel, update, or detract from old statutory terms inspired only by extratextual sources and [their] own imaginations.”
The Plaintiffs in Bostock were gay and transgender individuals who had been successful and effective employees, but terminated only shortly after their employers learned of their protected status. For example, Bostock was a child welfare advocate in Clayton County, Georgia, who was an employee of more than 10 years and performed award-winning work as part of his team with the County, but who was terminated after joining a gay softball league. Another of the Plaintiffs was an employee of a funeral home who was diagnosed with gender dysphoria after 6 years in employment, and who was terminated after announcing plans to return to work from vacation she would “live and work full time as a woman” (previously she had lived and worked as a man). The question before the Court was, did the employer’s actions constitute discrimination on the basis of sex?
In answering yes, the Court relied on precedent that holds Title VII adopts a “but-for” standard of causation, meaning that as long as membership in the protected class formed a “but-for” cause in the adverse employment action, it is unlawful. Under this standard, the majority opinion assumed for the purpose of argument that the term “sex” in Title VII referred only to biological sex (as opposed to including sexual orientation or gender identity). Nonetheless, assuming the statute only protected discrimination on the basis of biological distinctions between male and female, the Court held that under a “but-for” analysis, gay and transgender employees are protected. This is because in each of the cases involving discrimination against gay or transgender employees, their sex as male or female played a critical “but for” role in the discrimination, because had the same conduct been undertaken by an employee of the opposite sex, the employer would not have discriminated. As the Court emphasized, the “but for” standard is much more expansive than an analysis that asks if the discrimination occurred “primarily” due to membership in a protected class – and also note that Congress had reaffirmed the sweeping, “but for” analysis, which looks at whether protected status was a “motivating factor.”
For example, as discussed in the opinion “A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the [discriminatory] employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”
The majority opinion conceded that in reading Title VII in this manner, it likely read the statute beyond the scope of what its original authors intended, but dismissed the significance of legislative intent, again falling back on textualist analysis that the plain language of a statute is more important than the intention of the legislature. As the majority noted in walking through Title VII precedents, time and again the Court had not shrunk from applying the statute to ban discrimination in many forms not foreseen by Congress, such as: male on male sexual harassment, or requiring women to make larger pension contributions because of their greater life expectancy. The precedents demonstrated the following principles regarding Title VII’s anti-sex discrimination provisions; (1) it’s irrelevant what an employer might call the discriminatory practice; (2) sex need not be the sole or primary cause of discrimination; and (3) an employer cannot escape liability by demonstrating that it treats male and female employees comparably as groups.
Based on all these considerations, the majority held that Title VII prohibited discrimination against gay and transgender individuals, and denied the anticipated reaction that it was pulling a proverbial rabbit from a hat, or elephant from a mousehole, noting: “We can’t deny that today’s holding…is an elephant…[but] this elephant has never hidden in a mousehole; it has been standing before us all along.” As the majority saw it, consistent with its history of banning discrimination that included biological sex as any basis to discriminate, Title VII does not permit discrimination against gay or transgender individuals.
The Dissents focused their arguments on their position that the majority’s position was not truly textualist, but had expanded Title VII beyond its intended meaning. As Alito’s broadside argued, the majority’s opinion “sails under a textualist flag” but would have been torn apart by the late Justice Antonin Scalia who did so much to launch that school of judicial thought. Alito’s analysis focused on analysis of contemporary dictionaries and other authorities to demonstrate that the contemporary understanding of “sex” when the 1964 civil rights act was passed could not possibly have included gay or transgender identity. According to Alito, the majority disregarded the contemporary understanding: “in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.” Alito accused the Court of usurping the role of the legislature and attempting to update the text of Title VII to assure equal treatment for gay and transgender individuals, a “humane and generous” instinct, but beyond the Court’s authority.
Kavanaugh wrote a separate dissent that similarly accused the majority of deviating from textualist principles, even as Kavanaugh affirmed that he opposed discrimination against gay and transgender individuals. Kavanaugh emphasized that the majority had failed to interpret the term “sex” according to the cannon of construction that says statutes are to be read as they would be understood in “ordinary language” – the language of common speech. According to Kavanaugh’s analysis, “sex” would not include gay or transgender identity in ordinary language. Kavanaugh also argued that the majority’s reading was contrary to history, by conflating the women’s rights and LGBT rights movements, which were two historically separate movements.
Nonetheless, Kavanaugh concluded his dissent by taking a moment to seem impressed by the decision of the Court: “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.” No doubt, many Americans, LGBT and non-LGBT alike, will do just that.