Guest Column by Julia Stronks
On June 15, in a 6-3 decision, the Supreme Court ruled that the word “sex” in the Title VII 1964 Civil Rights Act includes the LGBTQ community (Bostock v Clayton County). This case was a combination of three different situations in which long-term employees were fired for being gay or transgender. The employees argued that Title VII prohibits discrimination based on sex, which should include sexual orientation and gender identity. The employers said that the word “sex” was never intended to include LGBTQ people.
Justice Neil Gorsuch wrote the opinion, and he said that if we look at the regular meaning of the word “sex” it clearly includes LGBTQ. The decisions made by the employers could not have been made without reference to the sex and sexual identity of the employees. This means that now, under federal law, employment decisions may not be based on sexual identity.
This decision is a significant move toward LGBTQ equality. Before June 15 employment discrimination based on sexual orientation or gender identity was partially prohibited in 25 states; now we know it is prohibited federally. But there are still questions left unanswered and we have to wait for further litigation to understand the full meaning of the Court’s decision.
What kind of discrimination is prohibited?
Title VII is a “chapter” in federal civil rights law. It is the employment chapter and we know that it includes hiring, firing and promotions. It provides that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
There are many more pieces of legislation that prohibit sex discrimination in education and other areas. Though Bostock arguably applies to all of these laws, we are still going to see more litigation on this point.
Does this mean I won’t get fired because I am gay?
No, it means if you are fired because you are gay you now have a federal law and perhaps state laws to assist you in bringing a lawsuit.
Which employers are covered by the statute?
All employers with at least 15 employees are covered, with some exceptions. For example, the military is not covered. And, Title VII also provides that religious employers are exempt. However, the meaning of the exemption for religious employers is not entirely clear. Are they exempt from all of Title VII or only exempt for certain kinds of employment decisions?
In 1985 the Supreme Court suggested that the exemption covered all employment decisions by religious institutions, even decisions related to who could be a janitor. Since that time, however, there has been debate about how far the exemption ought to extend.
Next week the Supreme Court is expected to hand down a decision clarifying whether Catholic schools are subject to other employment civil rights laws. And next year the Court will tell us if the city of Philadelphia violated the religious freedom clause of the Constitution’s First Amendment when it excluded Catholic Social Services from participating in a foster care program. The Catholic organization barred same-sex couples from serving as foster parents. These cases highlight the tension between religious freedom and civil rights concerns.
Could there be unexpected twists to Bostock?
The key to Bostock was this: how should we determine the meaning of words in a statute? Should we go by their plain meaning? Or, should we go by the what the legislators probably meant when they passed the law over 50 years ago? Justice Gorsuch said “textualism,” looking at the plain meaning, should prevail.
But some argue that Justice Gorsuch is preparing us for other cases in which textualism could result in erasing things like affirmative action. Constitutional scholar Cass Sunstein explains that 15 years after Title VII was passed the Supreme Court was asked to determine if the prohibition against employment discrimination on the basis of race allowed companies to voluntary assert affirmative action by preferring to hire people of color. At that time, the Court said even though the statute’s words seem to prohibit employment discrimination against Caucasians as well as others, the meaning of the statute was to assist in protecting employment for African Americans. Since that time, courts have allowed some employment decisions that favor women and people of color even though they arguably allow discrimination against men or Caucasians.
Sunstein points out that these cases focused on the meaning of the statute, not on the text of the statute. Last week’s Bostock opinion focused on the text, not the mind-set of those who wrote the legislation. In the words of Sunstein, textualism is a sword. “Those who live by the sword, die by the sword.” We will see.
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