Thus, Bostock turns on a simple application of Title VII’s text. Justice Kavanaugh filed a dissenting opinion. 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. What just happened? The high court's decision in Bostock v. Clayton County, Georgia, could have implications far beyond employment discrimination. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Clayton County, Geor- By choosing I Accept, you consent to our use of cookies and other tracking technologies. 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 … Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. 2018) (per curiam), that Title VII did not prohibit employers from firing employees because of their sexual orientation. Editor’s note: This originally appeared Monday, June 14 at erlc.com. Bostock v. Clayton County was about the firing of Gerald Bostock after his employer (an agency of Clayton County… Three cases were consolidated into the single opinion. 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. It treats men differently than women. 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. But the Eleventh Circuit held in Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 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. In this Law and Liberty essay, law professor John McGinnis, who is very high on, if… Policy Staff. 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. 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. Remarkably, Bostock is a 6-3 opinion. Likewise, employers are not saved if their “intention” is to discriminate based on other factors besides sex. Whether and how the First Amendment or the Religious Freedom Restoration Act may interact with Title VII is for a future case to decide. 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. As a concrete illustration, the Essay analyzes the main statutory question presented in Bostock v. Clayton County (2020). BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. Writing in dissent, Justice Alito accuses the majority of legislating from the bench. He explains that many bills over the past 45 years have attempted to protect LGBTQ workers, but all have failed to become law. 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. So the fate of individual LGBTQ workers remains unclear — at least for employees with bosses who object to LGBTQ people on religious grounds. Last week, the Supreme Court delivered a landmark decision for LGBTQ rights. 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.”. To learn more or opt-out, read our Cookie Policy. 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. 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. But the 6-3 majority opinion in Bostock was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts. Here, the Court reiterates that Title VII is concerned with the treatment of individuals, not groups, as evidenced by Los Angeles Dept. 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. The majority opinion of Bostock recognizes the differences between these identities and simultaneously acknowledges the connectedness among them. 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. 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. For Justice Gorsuch, delivering the majority judgment, ‘sex’ means (or meant in 1964) biological distinctions between men and women … Please also read our Privacy Notice and Terms of Use, which became effective December 20, 2019. And Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law. 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.”. 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. If you picked B, you agree with Justice Alito, who wrote a scathing dissenting opinion. Gorsuch wrote the majority opinion with Kavanaugh writing a dissent and Alito and Thomas writing another dissent. 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. By interpreting Title VII to cover LGBTQ workers, a comprehension unimaginable in 1964, the Court has usurped the role of Congress. But it is unclear whether Bostock will entirely ban workplace discrimination on the basis of sexual orientation or gender identity. Discrimination “because of ... sex” occurs whenever an employer treats male employees differently than female employees, or vice-versa. In a 6-3 ruling, the court expanded the definition of “sex” to include both under Title VII of the Civil Rights Act of … 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. Even if an applicant would need to consider their sex before checking the box, the employer need not. /. 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. If you picked A, you agree with Justice Gorsuch, who wrote the majority opinion in Bostock v. Clayton County. 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. 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). Just as that ruling upended scores of … 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. Here’s a quick overview. 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. Copyright © 2020 - On Labor. 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. The Supreme Court’s landmark LGBTQ rights decision, explained in 5 simple sentences. 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.. 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. 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.”. 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. 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. Both Gorsuch, a Trump appointee, and Chief Justice John Roberts, a conservative appointed by President George W. Bush, joined the majority. ANALYSIS/OPINION: On Monday, U.S. Supreme Court Justice Neil Gorsuch issued the Roe v. Wade of religious liberty. Notably, the Court does not rest its reasoning on the sex-stereotyping theories also advanced by the employees. 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. 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. by Leigh Thomas and Jared Odessky | Jun 15, 2020 | Featured Posts, Supreme Court, Workplace Discrimination. 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. 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. He passed. 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. Justice Alito filed a dissenting opinion, in which Justice Thomas joined. Opinion Summary: Bostock v. Clayton County. Help us reach our goal by making a contribution to Vox today, from as little as $3. … Justice Kavanaugh’s dissent showed that the majority did not interpret Title VII of the 1964 Civil Rights Act. June 16, 2020 at 5:42 p.m. UTC On Monday, the Supreme Court issued a landmark rulingfor LGBTQ rights. 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. All rights reserved. Remarkably, Bostock is a 6-3 opinion. 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. Today, the Supreme Court held that Title VII prohibits workplace discrimination on the basis of sexual orientation and gender identity. A non-exhaustive list: 1. OnLabor is a blog devoted to workers, unions, and their politics. of Water and Power v. Manhart. 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. If a male and female employee are both attracted to men, but the employer only fires the man, the decision is because of sex. ... Waiver of right of respondent Clayton County, Georgia to respond filed. 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. But the sheer force of the plaintiffs’ textual arguments in Bostock appears to have weighed heavily on both men. The decision is an historic victory for LGBTQ advocates, arriving more than 45 years after the introduction … 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. Neither man has shown much sympathy for LGBTQ rights plaintiffs in the past. 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. The growing circuit split … Bostock v. Clayton County, the Supreme Court’s latest adventure in legislating, has already seen enough compelling analysis to raise some troubling questions. That’s because the Court is also considering whether to grant employers with religious objections to LGBTQ people an exemption from anti-discrimination laws. Justice Neil Gorsuch’s opinion is clear, straightforward, and correct. Roberts joined Gorsuch’s opinion in full and did not write a separate opinion. because of [an employee’s] race, color, religion, sex, or national origin, broad right to engage in anti-LGBTQ discrimination. 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. Support from our readers helps us rely less on advertising, and keep our resource-intensive work free for everyone who needs it. Justice Neil Gorsuch authored the opinion for the 6-3 majority of the Court. Only the text of Title VII matters. 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. Reversed and remanded, 6-3, in an opinion by Justice Gorsuch on June 15, 2020. 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 . An employer who intends to discriminate based on sexual orientation or gender identity necessarily applies sex-based rules in violation of Title VII. Gorsuch compares the idea to putting a checkbox on an application asking if an applicant is either black or Catholic. Bostock v. Clayton County, Georgia. Alito also attacks the majority’s use of comparators in its purported but-for analysis. 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. 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. 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. If you picked C, then you agree with Five Minute Law. 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 … It is also no defense that an employer would fire both male and female employees who are LGBTQ. We want to add 2,020 more founding contributors to our supporter base by the end of the year. 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. 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. The text of the law is the only thing that matters in Bostock. 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. 4:14. 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. The answer is clear. The Trump-appointed justice Neil Gorsuch wrote the majority opinion. 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. As established in Phillips v. Martin Marietta Corp., sex need not be the sole cause of a discriminatory action to violate Title VII. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. Leigh Thomas is a student at Harvard Law School. 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