Bostock v. Clayton County

The Civil Rights Act of 1964 was passed into law amid the civil rights movement. It had been proposed by President John F. Kennedy as a means to combat racial discrimination and racial segregation in the aftermath of the Birmingham campaign. After Kennedy's assassination in November 1963, his successor Lyndon B. Johnson advocated passage of the Civil Rights Act in the following year.[5]

Among several provisions in the law is Title VII, which covers equal employment opportunities. Its key provision, codified at 42 U.S.C. § 2000e-2(a)(1), states that it is illegal to discriminate in any hiring or employment practices based on an "individual's race, color, religion, sex, or national origin". To enforce this requirement, Title VII established the Equal Employment Opportunity Commission (EEOC), a federal agency based on an office Kennedy had established with Executive Order 10925, to help oversee any reported employment discrimination and file lawsuits against entities that the EEOC believes have discriminated in the employment context. In addition, the EEOC may make its own determination on cases rather than taking these to court. These decisions do not carry the weight of case law, but the Supreme Court does consider the weight of the EEOC opinions as the EEOC "constitute[s] a body of experience and informed judgment to which courts and litigants may properly resort for guidance".[6]

The nature of protected classes under § 2000e-2(a)(1) have been refined through case law over the years. Three key Supreme Court cases prior to Bostock had considered the aspect of "sex" in the context of the statute:[7]

• Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), which ruled that sexual harassment was considered a form of unlawful discrimination under Title VII;
• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which determined that gender stereotyping was also a form of discrimination under Title VII and thus unlawful; and
• Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which further refined Meritor Savings Bank that sexual harassment between members of the same sex was also considered unlawful discrimination.

Until Bostock, whether the Civil Rights Act gave federal protection against employment discrimination to the class of LGBT people was in dispute. Individual states since 1973 acted on their own accord to extend employment discrimination protections to explicitly cover LGBT employees, and by 2020 before the Bostock decision, 21 states had included LGBT as a protected class against employment discrimination, while other states offered some but less extensive protections in their laws. States with such protections often have a state-level board that performs functions equivalent to the EEOC, and which will work with the EEOC to unify employment discrimination regulations. Numerous local governments passed similar LGBT employment discrimination statutes as well.[8]

Since 1994, members of the Democratic Party in the U.S. Congress have introduced some form of the Employment Non-Discrimination Act in nearly every two-year term, which would have amended the Civil Rights Act to include both sexual orientation and gender identity as protected classes under Title VII at the federal level and thus applying across the entire country. Passage of these bills has generally failed because lack of support among Republicans, especially in the House of Representatives.[9] More recently, the Equality Act, expanding the non-discrimination protections to include housing, education, and other areas, was introduced in 2015 and similarly introduced each term, failing to pass due to declining support for LGBT rights (and particularly transgender rights) among Republicans since 2013.[10][11]

The EEOC has used past case law and its evaluation of discrimination cases brought before it to establish that LGBT discrimination is unlawful under the context of the Civil Rights Act. In 2012, the EEOC ruled in Macy v. Holder that discrimination on the basis of gender identity is a form of sex stereotyping, and thus prohibited in employment as a form of discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964.[12] In 2015, the EEOC ruled in Baldwin v. Foxx that discrimination on the basis of sexual orientation is also prohibited in employment under Title VII, on the exact same basis as in Macy.[13] The following year, the EEOC filed its first pair of test cases in federal court arguing that sexual orientation is protected by Title VII.[14]

Gerald Bostock at the Supreme Court on October 8, 2019

Gerald Bostock was an employee of Clayton County, within the Atlanta metropolitan area, as an official for its juvenile court system since 2003, with good performance records through the years. In early 2013, he joined a gay softball league and promoted it at work for volunteerism.[15] In April 2013, Clayton County conducted an audit of funds controlled by Bostock and fired him for "conduct unbecoming a county employee".[16] Georgia had no law protecting LGBT people from employment discrimination at the time.[8]

Bostock believed that the county used the claim of misspent funds as a pretext for firing him for being gay, and sought legal recourse for workplace discrimination in 2016 in the United States District Court for the Northern District of Georgia. The county sought to dismiss the claim of prohibited discrimination—the District Court agreed to dismiss, on the basis of the precedent established in the 2017 case Evans v. Georgia Regional Hospital decided by the Eleventh Circuit (of which the District is part), which held that the Civil Rights Act's Title VII does not include protection against discrimination towards sexual orientation.[17]

Bostock appealed to the Eleventh Circuit, where the three-judge panel affirmed the District Court's ruling in 2018.[18] The Eleventh Circuit relied on two prior cases: its previous ruling in Evans, and Blum v. Gulf Oil Corp. from the Fifth Circuit in 1976. In upholding the ruling, the Eleventh Circuit pointed to their ruling in Evans that dismissed the Supreme Court's precedent against sex discrimination set by Price Waterhouse and Oncale.[19]

The Eleventh Circuit's ruling in Evans furthered a circuit split, as it conflicted with that of the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana (2017) in which, by an 8–3 decision, the Circuit found that discrimination in employment on the basis of sexual orientation violated Title VII.[20][21] The Second Circuit came to the same conclusion in Zarda v. Altitude Express, Inc. (2018) (Altitude Express) by a 10–3 vote en banc.[22][21] Thus the Eleventh Circuit, on the one hand, and the Second and Seventh Circuits, on the other, were divided on the question of the interpretation of Title VII. These cases and a related case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission,[23] (Harris Funeral Homes), in which the Sixth Circuit found Title VII also covered transgender employment discrimination,[24] set the stage for the Supreme Court's decision in Bostock.

Justice Neil Gorsuch delivered the opinion of the Court

Justice Neil Gorsuch delivered the opinion of the Court in this case on June 15, 2020.[32] In a 6–3 decision, the Court held that Title VII protections pursuant to § 2000e-2(a)(1) did extend to cover sexual orientation and gender identity. The decision then involved the statutory interpretation of Title VII (specifically the original meaning of "sex"),[2] not constitutional law as in other recent landmark cases involving the rights of LGBT individuals such as Obergefell v. Hodges.[33][34] The Court further held that Title VII protections against sex discrimination in the employment context apply to discrimination against particular individuals on the basis of sex, as opposed to discrimination against groups.[35] Thus, Title VII provides a remedy to individuals who experience discrimination on the basis of sex even if an employer's policy on the whole does not involve discrimination. Gorsuch wrote:

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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters' imagination supply no reason to ignore the law's demands. Only the written word is the law, and all persons are entitled to its benefit.[32]

In his opinion, Gorsuch wrote, "it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it."[2] He referenced Phillips v. Martin Marietta Corp., in which a company refused to hire women with young children; and Los Angeles Dept. of Water and Power v. Manhart, in which an employer required women to make larger pension fund contributions than did men, on the premise that women on average live longer than men do. Both cases violated Title VII, and Gorsuch wrote, "just as labels and additional intentions or motivations didn't make a difference in Manhart or Phillips, they cannot make a difference here."[2]

Gorsuch's decision also alluded to concerns that the judgment may set a sweeping precedent that would force gender equality on traditional practices. "They say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today but none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today."[36]

Justice Samuel Alito wrote a dissent, joined by Justice Clarence Thomas. In his dissent, Alito asserted that at the time of the crafting of the Civil Rights Act in 1964 the concepts of sexual orientation and transgender identity would have been unknown, and thus Congress's language should not be implied to cover these facets. Alito wrote, "Many will applaud today's decision because they agree on policy grounds with the Court's updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not."[37] Alito further stated that "even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute's terms were understood to mean at that time."[38] Alito was critical of the majority decision:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive ... A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.[39]

Justice Brett Kavanaugh wrote a separate dissent, arguing that the Court could not add sexual orientation or gender identity to Title VII due to the separation of powers, leaving this responsibility to Congress. He concluded by acknowledging that

Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and law ... 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.[38]

Many politicians across the political spectrum praised the ruling. Speaker Nancy Pelosi said that the ruling "secures critical protections for LGBT Americans across the country".[50] Republican Senator Rob Portman of Ohio stated that the ruling was "a big deal" and emphasized that people should not be fired simply because of their sexual orientation.[51][52] Some politicians, however, were critical of the ruling, such as Missouri Senator Josh Hawley, who argued that the ruling was simply "policymaking".[52][53] President Donald Trump neither praised nor criticized the ruling, and stated in response to the decision that "some people were surprised" but said that the court had "ruled and we live with their decision". He called the decision "very powerful".[54][55] On January 20, 2021, President Joseph Biden issued Executive Order 13988,[56] which built on Bostock v. Clayton County by ensuring the federal government interprets Title VII as protecting against discrimination on the basis of sexual orientation or gender identity.[57] The Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation also required that federal agencies include discrimination on the basis of sexuality and gender if a federal anti-discrimination statute covers sex discrimination.[58]

There was some surprise that Gorsuch, a conservative-leaning Trump appointee, wrote the majority opinion supporting LGBT employment rights.[59] Some commentators claimed that his opinion was consistent with his textualism in statutory interpretation of the plain meaning of laws in general,[38][60] while others asserted otherwise.[4] Gorsuch wrote much on textualism in his book A Republic, If You Can Keep It,[61] published in mid-2019, and some of his questioning at the oral hearings drew on using textual interpretation of the law.[62]

Alito's dissent fundamentally denied that Gorsuch's opinion employed textualism. He argued that the majority opinion went beyond the plain language of the law to claim that its intent in 1964 covered sexual orientation and gender identity as part of the meaning of "sex" in the statute.[63] Alito called the majority's decision a "pirate ship", in that "It 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."[63][60]

In a Slate article, Mark Joseph Stern wrote that Gorsuch's argument "rests on textualism" and described it as "remarkably dismissive" of Alito's dissenting opinion.[60] Stern agreed with Gorsuch, writing, "Alito does not want the court to stretch Title VII beyond its application—as expected by Congress in 1964—and that approach is not textualism", adding that Alito's opinion "elevates the alleged mental processes of long-dead lawmakers over the ordinary meaning of words".[60] Michael D. Shear, a White House correspondent for The New York Times, wrote, "Justice Gorsuch employed a fundamentally conservative principle—a literal reading of the words of a statute—to reach a decision that contrasts sharply with the conclusions of the other conservative justices on the court".[54] Carrie Severino, the president of the conservative Judicial Crisis Network and a former law clerk of Justice Thomas, said, "Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards".[38][54]

The religious journal First Things editor R. R. Reno called the opinion unworkable sophistry, comparing it to Dred Scott v. Sandford: "Historians may look back and judge Bostock the twenty-first-century analogue to Dred Scott, the Supreme Court decision that imposed the Southern slave regime on the entire country and contributed to the intolerable contradictions that led to the Civil War. Gorsuch's majority opinion leaves no wiggle room. It ties affirmations of homosexuality and transgenderism to our most basic conceptions of equality. And it does so by denying that there are any moral, legal, or even metaphysical differences between men and women."[64]

Jonathan Skrmetti, Chief Deputy Attorney General of Tennessee (which, with a number of other states, had filed an amicus brief on behalf of the employers in Bostock), observed that all three opinions in Bostock adopted a textualist approach.[65] Echoing a comment made by Justice Elena Kagan in memorializing Scalia,[66] Skrmetti argued that Bostock shows "we really are all textualists now". He characterized Gorsuch's majority opinion in Bostock as "glorifying textualism in its narrowest literalist conception". Gorsuch's majority opinion, Skrmetti argues, means that this "narrow" form of textualism—which, on Skrmetti's view, does not look to legislative history or other potential sources of the meaning of the statute—is now ascendant. But Skrmetti notes that where a statute is ambiguous, such tools might still be available to judges in interpreting statutes.[65]