An employer who fires an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964, the U. S. Supreme Court has ruled, finding for the first time that Title VII prohibits employment discrimination “because of sex.”
The U. S. Supreme Court’s 6-3 decision was issued in Bostock v Clayton County, Georgia. Two other cases were decided with Bostock: 1) Altitude Express v Zarda and 2) R.G. & G.R. Harris Funeral Homes v EEOC.
In Bostock and Zarda, the plaintiffs claimed they were discharged from their jobs because they were gay, in violation of Title VII. In R.G. & G.R. Harris Funeral Homes, a Michigan-based case, the plaintiff claimed she was fired as a funeral director after telling her employer that she intended to transition to and present as female. The 2nd U.S. Circuit Court of Appeals in Zarda held that Title VII bars discrimination based on sexual orientation. However, the 11th U.S. Circuit Court of Appeals in Bostock reached the opposite conclusion, finding that Title VII does not protect gay workers. The 6th U.S. Circuit Court of Appeals in R.G. & G.R. Harris Funeral Homes ruled that Title VII protects transgender employees from discrimination.
The U.S. Supreme Court agreed with the 2nd and 6th Circuits, holding that Title VII’s ban on discrimination protects lesbian, gay, bisexual and transgender (LGBT) employees – even if Congress did not have discrimination based on sex or transgender status in mind when it enacted the Civil Rights Act in 1964.
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Justice Neil Gorsuch wrote for the majority. When an employer fires a worker for being homosexual or transgender, the employer “fires that person for traits or actions it would not have questioned in members of a different sex,” he said. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.
No ‘Elephant In A Mousehole’
At the outset, Gorsuch noted the U.S. Supreme Court typically interprets a law by looking at how the public would have understood the law when it was passed – that is, the “ordinary public meaning” of the law.
In this case, the word “sex” means either male or female, Gorsuch observed. Therefore, under the plain language of Title VII, an employer violates Title VII by intentionally firing an employee “based in part on sex,” even if “other factors” were involved in the firing decision, he explained.
According to Gorsuch, the crux is whether changing the employee’s sex “would have yielded a different choice by the employer.” To emphasize this point, Gorsuch referenced a situation where an employer has two employees, both of whom are attracted to men … and one employee is male and the other is female. If the employer fires the male employee simply because he is attracted to men but does not fire the female employee for the same reason, then the employer has violated Title VII.
Further, Gorsuch rejected the notion that Title VII does not protect LGBT employees because Congress has failed to pass laws that directly address sexual orientation or transgender status. Discrimination against LGBT workers, he said, “necessarily entails discrimination based on sex; the first cannot happen without the second.” According to Gorsuch, proposed legislation might have failed because Congress believed LGBT employees are already protected by Title VII. “All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.”
Gorsuch also discounted the argument that, in 1964, most people would not have expected Title VII to apply to LGBT employees. By making this claim, Gorsuch said, the employers in this case suggested not that the statutory language “bears some other meaning,” but that “because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text.” This argument, he said, asks the U.S. Supreme Court to “merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.”
Even if most people in 1964 would not have expected this result, that “is exactly the sort of reasoning this Court has long rejected,” Gorsuch noted. In fact, “many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’” when Congress passed the Civil Rights Act in 1964.
Gorsuch continued by discounting the “hide an elephant in a mousehole” argument. This principle of statutory construction, he said, recognizes that when Congress amends a regulatory scheme, it does so clearly and does not use “vague terms or ancillary provisions.” Noting the decision in this case “is an elephant,” Gorsuch said that Title VII’s ban on sex discrimination in employment is not a mousehole and, instead, is a major piece of civil rights legislation that was broadly written. “This elephant has never hidden in a mousehole; it has been standing before us all along.”
In conclusion, Gorsuch emphasized the U.S. Supreme Court was ruling only that an “employer who fires an individual merely for being gay or transgender defies the law.” While issues surrounding sex-segregated bathrooms, locker rooms or dress codes might also violate Title VII, these “are questions for future cases,” he said.
Justice Samuel Alito dissented, joined by Justice Clarence Thomas.
Alito compared the majority opinion to a “pirate ship,” saying that while it sails “under a textualist flag” and purports to adhere to the text of Title VII, “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.”
Justice Brett Kavanaugh also dissented, saying the ordinary meaning of the phrase “discriminate because of sex” does not extend to discrimination based on sexual orientation and, therefore, does not protect gay or transgender employees.
“[T]he responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court,” Kavanaugh wrote. “The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”