A New U.S. Supreme Court Ruling on LGBTQ Rights - Melvin
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A New U.S. Supreme Court Ruling on LGBTQ Rights

by Melvin Cook

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The U.S. Supreme Court ruled this week that it is a violation of Title VII of the Civil Rights Act of 1964 for an employer to fire an employee because of their sexual orientation or transgender identity.

The case of Bostock v. Clayton County, Georgia was a consolidation of three cases. In two of the cases, the employees were terminated due in part to their coming out as homosexual. In one of the cases, the employee was terminated because of her coming out as transgender.

Justice Neil Gorsuch wrote the majority opinion for the Court. He noted that the Civil Rights Act clearly prevents discrimination based on certain criteria including race, color, religion, sex or national origin. Justice Gorsuch defined discrimination as treating an “individual worse than others who are similarly situated.”

He further pointed out that Title VII uses a “but-for” causation standard. As stated by the Court, “[t]hat form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause.”

That is, if one of the protected criteria is a contributing factor in the discriminatory act, then there is a violation of the Act. It does not need to be the primary or controlling factor. Put another way, it is illegal to fire someone based on their race, color, religion, sex, or national origin, regardless of whether or not there were other reasons for the termination in addition to the discriminatory reason.

Another question resolved by the majority was whether or not the discrimination is based on group status (such as a company that discriminated against women versus men) or individual status. The Court made clear that the individual is the focus of the law.

Justice Gorsuch on behalf of the majority reasoned that termination due to one’s same sex orientation or gender identity is discrimination based on sex. In his words, “[a]n 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.”

Justice Gorsuch articulated this reasoning another way: “… if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.” He opined that it is impossible to discriminate against a person of same sex orientation or transgender identity without discriminating against that person based on sex.

It did not matter to Justice Gorsuch and the majority that the drafters of the 1964 Civil Rights Act may not have foreseen the result of their work as applying to sexual orientation or transgender identity. In the majority’s view, the drafters of broadly worded legislation may not imagine the myriads of ways their legal handiwork might be applied, but they are setting down broad legal principles that could be applied in ways they do not currently envision.

The simple rule as stated by the Supreme Court in this case is that if an employer fires an employee based in part on sex, this is a violation of Title VII of the Civil Rights Act. It doesn’t matter if other reasons contributed to the decision, nor does it matter if the employer treated men and women as groups in the same manner.

Justice Gorsuch gives two hypothetical examples to illustrate his point. Suppose an employer has a male employee and a female employee, both of whom are attracted to men. The employer fires the male employee because of this attraction but retains the female employee. In Justice Gorsuch’s view, the employer has discriminated against the male employee based in part on sex.

Or suppose a male and female employee, both of whom identified as male at birth. The employer fires the female employee based on her gender identity change based but retains the male employee. In Justice Gorsuch’s view, the employer has discriminated against the female employee based in part on sex.

To illustrate his point using past real life cases, Justice Gorsuch points to a precedent in which a company forced female employees to contribute more to their pensions than men. This practice was found to violate Title VII. The company argued that statistically, women live longer than men. But although the employer may set forth sound actuarial reasons to treat women as a group differently than men, this did not solve the problem of discrimination against women as individuals. An individual woman might well have a shorter lifespan than the average man, and to treat her differently was forbidden by Title VII.

Another case cited by Justice Gorsuch was one in which a male was allowed to bring a Title VII claim for alleged sexual harassment. Even though discrimination against women was the primary evil Congress sought to remedy in the Civil Rights Act, it’s plain language also applied to discrimination against men.

Yet another case Justice Gorsuch found instructive was one in which a company treated men with young children more favorably than women with young children. The company’s defense that its overall policies tended to favor women was no shield from Title VII liability for the acts of individual discrimination.

Justice Gorsuch reasoned that these precedents illustrate some basic principles; namely: 1) that the labels an employer applies to its actions do not control Title VII liability; 2) that although discrimination against women was the primary evil Congress sought to protect by using the term sex discrimination, the phrase is broad enough to cover more than just women; and 3) Title VII protects individuals, not just groups of people.

Justice Gorsuch speculated that the congressman who introduced the sex discrimination provision of Title VII was actually against passage of the Civil Rights Act. He may have introduced the broad sex discrimination language as a poison pill, in hopes that it would prevent passage of the Act.

But regardless of the legislative history or the reasons for the insertion of the particular wording of the statute, Justice Gorsuch emphasized that the language that ended up in Title VII was very broad and by its plain meaning and application, applies to discrimination against those with same sex orientation and transgender identity.

The Court declined the invitation of the employers’ counsel to decide the case on bare policy arguments, stating that no Court should ever base a holding on policy arguments alone.

The Court noted that the constitutional right to free exercise of religion could be impacted by its decision but did not address any specific unintended consequences that might flow from its decision, stating that this specific issue was not before the Court at this time. The Court also observed that the Religious Freedom Restoration Act (RFRA) is a very powerful statute that subjects all laws to scrutiny for their impact on religious freedom. Laws that burden religious freedom must undergo a strict scrutiny in order to pass constitutional muster. In this sense, RFRA acts as a kind of super statute to ensure that all laws do not unduly burden religious freedom.

The case is interesting in that two Justices seen as conservative or moderate (i.e., Justices Gorsuch and Roberts) joined the so-called liberal wing of the Court in the decision. Justices Alito and Kavanaugh wrote separate dissents.

Justice Alito stated his opinion that there is a clear difference between discrimination based on sex and discrimination based on sexual orientation or gender identity. He stated that this is proved by imagining taking a poll of people in 1964 who would have interpreted the Civil Rights Act as protecting gays or transgender individuals. He believes no one would have thought this at the time. In fact, he notes that for many decades even the Equal Employment Opportunity Commission (EEOC) did not take the position that transgender and gay individuals were a protected class under the Civil Rights Act. He also noted that Congress must have thought the same thing because they had made several attempts to make laws specifically making sexual orientation and transgender identity unlawful criteria for discrimination.

Justice Alito would have followed Justice Scalia’s maxim that words in a statute “mean what they conveyed to reasonable people at the time.”

The crux of Justice Alito’s objection seemed to be that this was a matter for legislative, and not judicial, action.

Justice Kavanaugh reasoned that the phrase “discriminate against because of sex”, in common parlance, plainly does not encompass discrimination based on sexual orientation. In his words “Bostock and Zarda were fired because they were gay, not because they were men.” He pointed out that in prior cases involving discrimination based on sexual orientation, “[n]ot a single Justice stated or even hinted that sexual orientation was just a form of sex discrimination.” In his view it was difficult to accept the majority’s assertion that it was not rewriting or updating the plain text of the law.

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