In Bostock v Clayton County 590 US_ (2020), the US Supreme Court decided, by a 6-3 majority, that under Title VII of the Civil Rights Act 1964, discrimination “because of…sex” includes discrimination because of sexual orientation or gender identity. If there are two female employees, but the employer only fires the one assigned male at birth, this too is because of sex. A male and female employee who are both attracted to men may be different because of their sex, but they are also different because of their sexual orientation. 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. Clayton County Supreme Court opinion and dissents. BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. From these understandings, the Court articulates a clear rule: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”. The decision is an historic victory for LGBTQ advocates, arriving more than 45 years after the introduction … Help us add 2,020 founding contributors to our supporter base by the end of the year, and keep Vox free for all, by making a contribution today. Finally, the Court dispenses with what it describes as the employers’ “naked policy appeals.” It explains that policy concerns such as the fate of sex-segregated workplace facilities and employers’ religious convictions are not before the Court at this time. As established in Phillips v. Martin Marietta Corp., sex need not be the sole cause of a discriminatory action to violate Title VII. The same is true of a box asking if an employee is “homosexual or transgender.” If an employer wished to write out instructions for who should check the box, it would be impossible to do so without words relating to sex. The majority opinion has virtually no policy analysis or political rhetoric, and it lacks the kind of inflated pseudo-philosophic pontification that Kennedy favored. Help us reach our goal by making a contribution to Vox today, from as little as $3. Bostock v. Clayton County, Georgia ... first widely publicized sex reassignment surgeries in the United States were not performed until 1966, 33 and the great majority of physicians surveyed in 1969 thought that an individual who sought sex reassignment surgery was either ... the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Alito also attacks the majority’s use of comparators in its purported but-for analysis. Remarkably, Bostock is a 6-3 opinion. All rights reserved. Last week, the Supreme Court delivered a landmark decision for LGBTQ rights. Here, the Court reiterates that Title VII is concerned with the treatment of individuals, not groups, as evidenced by Los Angeles Dept. On June 15, 2020, the United States Supreme Court ruled in a 6-3 majority opinion in Bostock v.Clayton County that Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from discrimination in the workplace based on sexual orientation and gender identity.. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Justice Neil Gorsuch’s majority opinion in Bostock v.Clayton County, a Supreme Court decision extending employment protections to gay and transgender people, kicks off a … Remarkably, Bostock is a 6-3 opinion. Only the text of Title VII matters. At the very least, Bostock suggests that this conservative Supreme Court can follow the clear text of a law, even when that reading points in a liberal direction. Both Justice Gorsuch’s majority opinion and the dissents by Justices Alito and Kavanaugh offer avowedly textualist analyses of Title VII’s “ordinary meaning,” yet their reasoning and conclusions diverge. June 15, 2020. The high court's decision in Bostock v. Clayton County, Georgia, could have implications far beyond employment discrimination. In a 6-3 ruling of a consolidated group of cases styled Bostock v. Clayton County, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” under Title VII of the Civil Rights Act of 1964.. He passed. Liability under Title VII, the Court instructs, is not governed by “conversational conventions.” Conversational speakers do not naturally list every but-for cause of an employment event, but such causes are still relevant to finding a Title VII violation. Support from our readers helps us rely less on advertising, and keep our resource-intensive work free for everyone who needs it. An applicant not hired for checking the “black or Catholic” box would face illegal discrimination for being black or Catholic, but an employee checking the “homosexual” box would face discrimination because of sexual orientation, without any reference to sex. In a 6-3 ruling, the court expanded the definition of “sex” to include both under Title VII of the Civil Rights Act of … Justice Kavanaugh’s dissent showed that the majority did not interpret Title VII of the 1964 Civil Rights Act. By choosing I Accept, you consent to our use of cookies and other tracking technologies. Gorsuch wrote the majority opinion with Kavanaugh writing a dissent and Alito and Thomas writing another dissent. With respect to gender identity, they argued that employers discriminate on the basis of sex when they rely on sex stereotypes about how people assigned a certain sex at birth should identify and behave. /. Bostock v. Clayton County, the Supreme Court’s latest adventure in legislating, has already seen enough compelling analysis to raise some troubling questions. Justice Neil Gorsuch’s opinion is clear, straightforward, and correct. In this Law and Liberty essay, law professor John McGinnis, who is very high on, if… June 16, 2020 at 5:42 p.m. UTC On Monday, the Supreme Court issued a landmark rulingfor LGBTQ rights. The text of the law is the only thing that matters in Bostock. Just as that ruling upended scores of … Clayton County, Geor- Both Gorsuch, a Trump appointee, and Chief Justice John Roberts, a conservative appointed by President George W. Bush, joined the majority. The growing circuit split … by Leigh Thomas and Jared Odessky | Jun 15, 2020 | Featured Posts, Supreme Court, Workplace Discrimination. 4:14. And, because discrimination on the basis of sexual orientation or gender identity necessarily requires an employer to treat some male employees differently than some female employees, or vice-versa, such discrimination is illegal. After establishing the basic formulation, the Court explains how an employer cannot escape liability by claiming that “other factors” besides sex, such as sexual orientation or gender identity, contributed to the employer’s decision. Neither man has shown much sympathy for LGBTQ rights plaintiffs in the past. Title VII bans any employment discrimination that occurs “because of ... sex.” As Bostock explains, this means that if an employer “intentionally relies in part on an individual employee’s sex when deciding to discharge the employee” or “if changing the employee’s sex would have yielded a different choice by the employer,” then Title VII has been violated. Discrimination “because of ... sex” occurs whenever an employer treats male employees differently than female employees, or vice-versa. Writing in dissent, Justice Alito accuses the majority of legislating from the bench. Justice Gorsuch wrote for the majority, framing the decision as a “straightforward application of legal terms with plain and settled meanings.”, The Court begins its opinion by assessing the ordinary public meaning of the terms of Title VII. The court’s assertion that an “individual’s homosexuality or transgender status is not relevant to employment decisions” is manifestly false, Dr. Donohue contends, as is the following claim … Gorsuch lays out why in just five crisp sentences on the first page of his majority opinion: In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. 17–1618. The decision is an historic victory for LGBTQ advocates, arriving more than 45 years after the introduction of the first bill in Congress aimed at protecting LGBTQ workers. Justice Alito filed a dissenting opinion, in which Justice Thomas joined. Bostock v. Clayton County, Georgia. As a concrete illustration, the Essay analyzes the main statutory question presented in Bostock v. Clayton County (2020). Even though an employer might not learn the race or religion of the applicant, failure to hire an applicant who checked the box would still “turn on” race or religion. Today's News & Commentary — December 17, 2020, Amy Coney Barrett and the Overconfidence and False Modesty of Textualism, Amy Coney Barrett is as Anti-Worker as the Rest of Trump’s Judges, Today’s News & Commentary — September 24, 2020, Criminal Records Exclusion, “Rational Discrimination,” and Ban the Box, Commentary Round-up: Bostock v. Clayton County. Bostock is, undoubtedly, a major victory for LGBTQ rights — before Bostock, it was still legal for employers to discriminate on the basis of sexual orientation or gender identity in most states. It also rebuffs the employers’ hypothetical that an employer can refuse to hire LGBTQ applicants under a blanket anti-LGBTQ policy without ever asking the employee’s sex. But the 6-3 majority opinion in Bostock was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," wrote Justice Neil Gorsuch, a conservative appointed by President Donald Trump, in the majority opinion. In Bostock, the Court considered Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Though there is little doubt that the people who drafted this law in 1964 did not believe they were enacting a ban on LGBTQ discrimination, the thrust of Gorsuch’s opinion is that the expectations of lawmakers in 1964 simply do not matter. By interpreting Title VII to cover LGBTQ workers, a comprehension unimaginable in 1964, the Court has usurped the role of Congress. Kelly S. Hughes Charlotte Author The recent Bostock v. Clayton County, Georgia decision, in which the Supreme Court of the United States ruled that an employer that fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964, has received a … Opinion Summary: Bostock v. Clayton County. For Justice Gorsuch, delivering the majority judgment, ‘sex’ means (or meant in 1964) biological distinctions between men and women … “In common parlance,” he writes, “Bostock and Zarda were fired because they were gay, not because they were men.” He “acknowledge[s] the important victory achieved today by gay and lesbian Americans,” but laments that it was achieved by “judicial dictate” rather than “through the democratic process.”, Leigh Thomas is a student at Harvard Law School.More by this Author », Tags: alito, Bostock v. Clayton County, employment discrimination, gorsuch, Harris Funeral Homes v. EEOC, kavanaugh, LGBTQ workers, Supreme Court, textualism, Title VII, Zarda. Both Gorsuch, a Trump appointee, and Chief Justice John Roberts, a conservative appointed by President George W. Bush, joined the majority. In a separate dissent, Justice Kavanaugh takes issue with the majority’s conclusion with respect to sexual orientation because it does not comport with the “ordinary meaning” of sex discrimination. So the fate of individual LGBTQ workers remains unclear — at least for employees with bosses who object to LGBTQ people on religious grounds. ANALYSIS/OPINION: On Monday, U.S. Supreme Court Justice Neil Gorsuch issued the Roe v. Wade of religious liberty. In the absence of amendment by Congress, Title VII’s bar against sex discrimination should be understood as it was by “reasonable people” at the time of passage. Writing in dissent from the majority decision in Bostock v.Clayton County, U.S. Supreme Court Justice Samuel Alito summed up the proper reaction to his colleagues’ rewriting of federal law to shoehorn “sexual orientation” and “gender identity” to the longstanding definition of sex: Argued October 8, 2019—Decided June 15, 2020* In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. An employer who intends to discriminate based on sexual orientation or gender identity necessarily applies sex-based rules in violation of Title VII. by Leigh Thomas and Jared Odessky | Jun 15, 2020 | Featured Posts, Supreme Court, Workplace Discrimination, Today, the Supreme Court held that Title VII prohibits workplace discrimination on the basis of sexual orientation and gender identity. Roberts joined Gorsuch’s opinion in full and did not write a separate opinion. It also comes as the Trump administration has mounted new attacks on LGBTQ rights. Alito rejects the majority’s claim to textualism, characterizing the opinion as a “pirate ship”: “[i]t sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated–the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” To demonstrate the opinion’s textualist flaws, Alito interrogates the majority’s checkbox hypothetical. Whether and how the First Amendment or the Religious Freedom Restoration Act may interact with Title VII is for a future case to decide. Next, the Court concludes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” It uses two examples drawn from the employees’ arguments. The majority opinion of Bostock recognizes the differences between these identities and simultaneously acknowledges the connectedness among them. In April, Vox launched a way for readers to support our work with financial contributions — and we've been blown away by the response. In Bostock v. Clayton County, the Court ruled in a 6-3 decision that the firing of Gerald Bostock, who had expressed interest in establishing a gay softball league at work, discriminated against LGBTQ+ employees and was a direct violation of the 1964 Civil Rights Act. If you picked A, you agree with Justice Gorsuch, who wrote the majority opinion in Bostock v. Clayton County. of Water and Power v. Manhart. The Court also rejects arguments that Congress could have opted to use more specific language if it intended to protect these groups, or that Congress signified anything about Title VII when it failed to pass legislation explicitly barring LGBTQ discrimination. Gorsuch compares the idea to putting a checkbox on an application asking if an applicant is either black or Catholic. If a male and female employee are both attracted to men, but the employer only fires the man, the decision is because of sex. As Gorsuch concludes his opinion, “ours is a society of written laws,” and that means that “judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” Because Congress “adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” the Court must hold that anti-LGBTQ discrimination in the workplace is illegal. We use cookies and other tracking technologies to improve your browsing experience on our site, show personalized content and targeted ads, analyze site traffic, and understand where our audiences come from. We want to add 2,020 more founding contributors to our supporter base by the end of the year. The Trump-appointed justice Neil Gorsuch wrote the majority opinion. Leigh Thomas is a student at Harvard Law School. Even if an applicant would need to consider their sex before checking the box, the employer need not. An 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. That is, if an employer permits its female employees to have sexual and romantic attractions to men but denies that same right to male employees, it is engaged in sex discrimination. Justice Neil Gorsuch authored the opinion for the 6-3 majority of the Court. Gorsuch didn’t simply honor his textualist approach in Bostock; he wrote the majority opinion. But the Eleventh Circuit held in Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. Notably, the Court does not rest its reasoning on the sex-stereotyping theories also advanced by the employees. Alito concludes with a parade of horribles he claims will result from the decision, listing consequences for sex-segregated bathrooms and locker rooms; women’s sports; employment by religious organizations; housing; healthcare benefits; freedom of speech; and constitutional claims. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. It is also no defense that an employer would fire both male and female employees who are LGBTQ. But it is unclear whether Bostock will entirely ban workplace discrimination on the basis of sexual orientation or gender identity. To learn more or opt-out, read our Cookie Policy. Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters. Likewise, employers are not saved if their “intention” is to discriminate based on other factors besides sex. Today, the Supreme Court held that Title VII prohibits workplace discrimination on the basis of sexual orientation and gender identity. In Bostock v. Clayton County, the Court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender individuals from workplace discrimination. And Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law. This year, support from our founding contributors has helped us create projects that millions relied on to understand a year of chaos, and to keep their families safe. Here’s a quick overview. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. He explains that many bills over the past 45 years have attempted to protect LGBTQ workers, but all have failed to become law. Today, the Supreme Court ruled in three consolidated cases styled Bostock v. Clayton County, in which the justices considered whether or not the term “sex” will extend to include “sexual orientation” and “gender identity.”. In fact, “many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’ at the time of the law’s adoption.” Here, the Court cites Oncale v. Sundowner Offshore Services, Inc., which held that same-sex sexual harassment violates Title VII even if it was not the “principal evil” Congress sought to target. The Court moves next to address the employers’ statutory interpretation arguments, which it describes as “repackag[ing] errors we’ve already seen and this Court’s precedents have already rejected.” It rejects the employers’ argument that in ordinary conversation, LGBTQ discrimination is not referred to as sex discrimination. Turning to the employers’ arguments about legislative purpose and consequences, the Court emphasizes that when the text of the statute is clear and unambiguous, legislative history has no bearing. Reversed and remanded, 6-3, in an opinion by Justice Gorsuch on June 15, 2020. … Excellent Critiques of Bostock Ruling By ED WHELAN June 25, 2020 9:51 AM I’ve run across several excellent critiques of Justice Gorsuch’s majority opinion in Bostock v. Clayton County (on top, of course, of the compelling dissents by Justices Alito and Kavanaugh). One case can have multiple dissents because they are used to fight a flaw in the logic or reading of the Constitution by the majority opinion. Clayton County, Georgia On the morning of June 15, 2020, the Supreme Court of the United States (“SCOTUS”, “the Court”) handed down their opinion in the case of Bostock v. Clayton County, Georgia 1 (“ Bostock ”), solidifying the legal protections of … Bostock v. Clayton County 590 U.S. ___ (2020) was a United States Supreme Court case that illegally ruled that members of the LGBT community were "protected" under Title VII of the Civil Rights Act of 1964 through judicial activism . The Court’s decision was fairly surprising, as the Justices divided 6-3 in favor of the employees, with conservative Justice Neil Gorsuch authoring the opinion. Copyright © 2020 - On Labor. Three cases were consolidated into the single opinion. Gorsuch also applies similar logic to a transgender employee: Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. That’s because the Court is also considering whether to grant employers with religious objections to LGBTQ people an exemption from anti-discrimination laws. ... Waiver of right of respondent Clayton County, Georgia to respond filed. If you picked C, then you agree with Five Minute Law. Bostock v. Clayton County, a landmark Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers, was a test of Justice Neil Gorsuch’s principles. Finally, it interprets discrimination to mean differential treatment of an individual employee, rather than a class. What just happened? The Supreme Court’s landmark LGBTQ rights decision, explained in 5 simple sentences. 2018) (per curiam), that Title VII did not prohibit employers from firing employees because of their sexual orientation. In a concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Gorsuch suggested that religious conservatives should enjoy sweeping exemptions from laws prohibiting discrimination on the basis of sexual orientation or gender identity. We in­ter­pret our sub­ject broadly to in­clude the cur­rent cri­sis in the tra­di­tional union move­ment (why union de­cline is hap­pen­ing and what it means for our so­ci­ety); the new and con­tested forms of worker or­ga­ni­za­tion that are fill­ing the la­bor union gap; how work ought to be struc­tured and man­aged; how work­ers ought to be rep­re­sented and com­pen­sated; and the ap­pro­pri­ate role of gov­ern­ment – all three branches – in each of these is­sues. Thus, Bostock turns on a simple application of Title VII’s text. Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or … But the sheer force of the plaintiffs’ textual arguments in Bostock appears to have weighed heavily on both 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. Having laid out this rule, Gorsuch then explains why discrimination against LGBTQ employees constitutes “sex discrimination” by laying out two examples: Consider, for example, an employer with two employees, both of whom are attracted to men. because of [an employee’s] race, color, religion, sex, or national origin, broad right to engage in anti-LGBTQ discrimination. With respect to sexual orientation, the employees argued that employers discriminate on the basis of sex when they rely on sex stereotypes that men should be attracted to women and women should be attracted to men. OnLabor is a blog dev­oted to workers, unions, and their politics. Justice Kavanaugh filed a dissenting opinion. And, as Bostock explains at length, that text clearly prohibits employment discrimination on the basis of sexual orientation or gender identity. The basis for the Court’s ruling in Bostock v. Clayton County was summarized by Justice Gorsuch in his majority opinion: “An individual’s homosexuality or transgender status is not relevant to employment decisions. First, it assumes the employers’ definition of “sex”: “status as either male or female [as] determined by reproductive biology.” Second, it defines “because of” sex as simple “but-for” causation: an action is illegal if it would not have occurred but for sex, even if other causes were at play. Please also read our Privacy Notice and Terms of Use, which became effective December 20, 2019. If you picked B, you agree with Justice Alito, who wrote a scathing dissenting opinion. A non-exhaustive list: 1. The answer is clear. Bostock v. Clayton County was about the firing of Gerald Bostock after his employer (an agency of Clayton County… Policy Staff. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. Editor’s note: This originally appeared Monday, June 14 at erlc.com. It treats men differently than women. Catholic League president Bill Donohue blasted this week’s Supreme Court decision in Bostock v. Clayton County, saying the majority opinion written by Justice Neil Gorsuch rests on “flawed anthropology.”. And the Supreme Court is expected to hear a case next fall asking whether religious organizations have a broad right to engage in anti-LGBTQ discrimination. 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