Under Title VII Employer Cannot Discriminate Against Homosexual Or Transgender Employees

In a blockbuster case,  the United States Supreme Court held in Bostick v. Clayton County, that Title VII of the Civil Rights Act of  1964 prohibited sex discrimination when an employer intentionally fires an employee based in part on sex. The impact of this landmark case is enormous both short and long term.

Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league.  Altitude Express fired Donald Zarda days after he mentioned being gay and R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.”  Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964.   All three cases, involving sex discrimination, under Title VII of the Civil Rights Act of 1964, were appealed to the United States Supreme Court, and consolidated into one case, Bostock v. Clayton County.

Justice Gorsuch, delivered the opinion of the Court in a 6 to 3 decision, joined by the four liberal Justices and Chief Justice Roberts, (an unusual alignment).  Justice Gorsuch tees up the question before the Court: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.”  His opinion is classic  textualism.

Justice Gorsuch, first recognized that the legislators who adopted the Civil Rights Act of 1964, might not have anticipated their work would lead to a  particular result, nor were they thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.  ‘Nevertheless, the limits of the drafters’ imagination supply no reason to ignore what the law demands.”

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

Justice Gorsuch, noted that the Court normally interprets a statute in accord with the ordinary public meaning of its terms, at the time of its enactment, otherwise judges could add to, remodel, update, or detract from old statutory terms inspired by extratextual sources and their imaginations, the court would risk amending statutes outside the legislative process reserved for the people’s representatives.   Textualism avoids this analysis by looking at the text to determine its meaning, even though the writers might not have anticipated the result.

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 race, color, religion, sex, or national origin.”  Justice Gorsuch, then embarks on his  analysis by examining the text of the statute by noting that while  “sex” is the primary term in dispute, the question isn’t just what “sex” meant, but what Title VII says about it.”

The statute prohibits employers from  taking certain individual actions “because of ” sex, which ordinarily means “because of  or by reason of  or on account of.” This is the “traditional” standard of but-for causation. This means:

“…a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.  So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”

Justice Gorsuch, noted that the text of the statute refers to “individuals” in three separate instances, making it clear that what is prohibited is sex discrimination against an individual, not a group.

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex.  It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision.  And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.”

The statute is written in broad language with no exceptions.  Justice Gorsuch concluded that when Congress chooses not to include any exceptions to a broad rule, the Court applies the broad rule.  There is no donut rule with exceptions hidden inside the broad rule.  Furthermore, from the ordinary public meaning of the statute’s language, a straightforward rule emerges:

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex.  It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision.”

Justice Gorsuch, provides a rule and an example.  The rule is that if changing the employee’s sex would have yielded a different choice by the employer, a statutory violation has occurred than is intentional.

“For example, an employer with two employees, both of whom are attracted to men.  The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman.  If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

Justice Gorsuch, concluded that “…when the meaning of the statute’s terms is plain, our job is at an end.”

“The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”

Besides the immediate impact, which is enormous, is the long term impact.  The opinion avoids any consideration of its affect on other statutes and constitutional provisions, like the religious clauses and Title IX.  This case has generated an enormous amount of controversy as the commenters weigh in from all sides.

One impact will be an  expanded application of textualism.  In this case, four liberal judges joined with two conservative judges’  to the surprise of many observers,  to generate a result that is based on classic textualism.

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