Supreme Court Rules Against Discrimination Based on Sexual Orientation

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On Monday, June 15, 2020, the Supreme Court struck down state laws that permitted discrimination in employment on the basis of sexual orientation. The decision was a powerful vote of 6 to 3 margin with the majority Supreme Court decision, written by Trump appointee Justice Neil Gorsuch. The dissent was written by Justice Samuel Alito (joined by Justice Clarence Thomas) with Justice Brett Kavanaugh writing a separate dissent.

The case revolves around the applicability of the 1964 Civil Rights Act signed into law on July 2, 1964, by President Lyndon Johnson in a historic civil rights action. The decision is based on the cases of three employees: Gerald Bostock fired by Clayton County, Georgia, for conduct “unbecoming” after he began participating in a gay recreational softball league; Donald Zarda fired by Altitude Express in New York State days after he mentioned being gay; and Aimee Stephens fired by R. G. & G. R. Harris Funeral Homes in Michigan who presented as a male when she was hired, and after six years on the job, she informed her employer that she planned to “live and work full-time as a woman.” The Eleventh Circuit held that Title VII of the 1964 Civil Rights Act does not prohibit employers from firing employees for being gay, but the Second and Sixth Circuits allowed the claims to proceed under that title.

Gerald Bostock had worked for the Georgia county for a decade working on juvenile justice cases. He had been placed in charge of the county’s Court Appointed Special Advocate (CASA) program. He received several commendations in job evaluations over the decade. After it became known that he was gay because he joined a softball league, he was criticized for his sexual orientation and his involvement with the league during an advisory board meeting having oversite of the program. In 2013 he was accused of mismanaging funds and was fired. Of the three people, Mr. Bostock is the only one alive to realize the Supreme Court’s historic ruling.

The Supreme Court opinion stated:

“A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII…

So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.”

Much of the opinion focused on the application of Title VII and its expansion since 1964. Some saw the original provision on discrimination based on sex as a “poison pill” added during the debate in the House of Representatives that might pull the entire Civil Right Act down since many members of the Senate and House of Representatives were more open to banning discrimination based on race rather than discrimination toward women in the workplace—still a controversial topic in 1964. But the majority opinion pushes back against the narrow interpretation promoted by the three minority Justices. The Majority further stated:

“Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

The majority included Gorsuch, along with Chief Justice John Roberts, Justice Ruth Bader Ginsberg, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elizabeth Kagan. Justice Samuel Alito filed the dissenting opinion joined by Justice Clarence Thomas, and Justice Brett Kavanaugh filed a separate dissent.

Justice Alito (signed on by Justice Thomas) writes:

“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.”

Alito then lists the various instances of laws and practices that banned gays in the military, teaching, and various other profession and practices in 1964. He also suggests that this Court decision has the potential to cause changes in other laws beyond employment practices. He references this decision’s potential impact on housing, sports, faith-based practices, and health care.

In his opinion, Justice Kavanaugh relies more on the argument that the Court is legislating, but he does conclude with,

“Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. 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.

Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the dissenting Court’s judgment.”

The 172-page opinions can be found here. The President said, “Well, they’ve ruled. I’ve read the decision. And some people were surprised. But they’ve ruled, and we live with their decision; that’s what it’s all about. We live with the decision of the Supreme Court. Very powerful. A very powerful decision, actually. But they have so ruled.”

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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