SCOTUS Holds Title 7 Protects Gay and Transgender Workers: Justice Neil Gorsuch Stays True To His Word That Words Are Dispositive In Judicial Decisions

July 27, 2020 / Uncategorized

Introduction

There can be no clearer example of the application of the judicial philosophy of “textualism” than the decision authored by Justice Gorsuch in Bostock v. Clayton County, Ga, 590 U.S. _ (No. 17-1618, 6/15/20). Textualism is the view that constitutions and statutes must be construed and enforced according to the plain and unambiguous words used in their various provisions. Constitutions and statutes should not be expanded by going beyond the plain words used. Justice Gorsuch considers himself an ardent textualist and his recent opinion in Bostock proved the point. The notion that Gay and Transgender persons should be protected under federal law from adverse employment decisions might seem anathema to conservatives like Justice Gorsuch, but given his ardent textualism, the result was clear that Title VII prohibited those employment decisions. As Justice Gorsuch put it:

When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Facts

Gerald Bostock worked for Clayton County, Georgia as a child welfare advocate. He was successful at his job and the County won national awards for its work. Bostock then began participating in a Gay recreational softball league. Soon after, influential members of the local community began making disparaging remarks about Bostock’s sexual orientation and his participation in a Gay softball league. Bostock was then fired from his job for conduct “unbecoming” a County employee. Bostock sued alleging unlawful discrimination under Title VII, but the Eleventh Circuit held that the law did not forbid employers from firing employees for being Gay.

Along with Bostock’s case, the Court took one other involving the firing of a Gay employee (Donald Zarda) and another case involving the firing of a Transgender employee, Aimee Stephens, for no other reason than she was Transgender.

These three cases thus put one legal issue before the Court according to Justice Gorsuch: “[W]hether an employer can fire someone simply for being homosexual or transgender.”

Decision

Justice Gorsuch’s decision was simple and straightforward because he found the federal legislation and the words used in Title VII to be simple and straightforward. Title VII, in plain and unambiguous language, prohibits employers from taking adverse employment decision because of sex, and if an employer was going to fire a person for no other reason than the person was Gay or Transgender, then that person was being fired because of sex. As Justice Gorsuch explains:

If the employer intentionally relies in part on an individual employee’s
sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”

The statute’s message for our cases equally simple and momentous:
“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Learning Point: The author has participated in several cases before the United States Supreme Court. There will always be the liberal bloc of votes currently represented by Justices Ginsburg, Breyer, Sotomayor and Kagan, who also joined in Justice Gorsuch’s opinion. And there will always be the conservative bloc of votes presently represented by Justices Thomas, Alito and Kavanaugh, who dissented. Based upon the Bostock decision, it appears that Justice Gorsuch, much like Justice Roberts who also joined in Justice Gorsuch’s opinion without writing a separate opinion, cannot be neatly “pigeonholed” into either a conservative or a liberal slot. But reading the “tea leaves” on how Justice Gorsuch may vote might be easier because as Bostock shows, if the words in a statute are plain and unambiguous, Justice Gorsuch will vote to apply them and enforce them as written, regardless of the type of case before the Court.

  • Chicago

    Illinois 60603

    10 South LaSalle Street

    Chicago, Illinois 60603

    T: 312.855.1010 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Dennis D. Fitzpatrick

  • New York

    New York 10005

    28 Liberty Street 39th Floor

    New York, New York 10005

    T: 212.805.3900 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Tyler Jay Lory

  • Irvine

    California 92614

    17901 Von Karman Avenue

    Suite 650

    Irvine, California 92614

    T: 949.260.3100 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman

  • Florham Park

    New Jersey 07932

    100 Campus Drive

    Florham Park, New Jersey 07932

    T: 973.410.4130 TF: 800.826.3505 F: 973.410.4169 Office Managing Partner: Carl M. Perri

  • Michigan City

    Indiana 46360

    200 Commerce Square

    Michigan City, Indiana 46360

    T: 219.262.6106 TF: 800.826.3505 F: 312.606.7777 Office Managing Partners: Paige M. Neel, Kimbley A. Kearney

  • Appleton

    Wisconsin 54914

    4650 W. Spencer Street

    Appleton, Wisconsin 54914

    T: 920.560.4658 TF: 800.826.3505 F: 920.968.4650 Office Managing Partner: Patrick L. Breen

  • Stamford

    Connecticut 06902

    68 Southfield Avenue

    2 Stamford Landing Suite 100

    Stamford, Connecticut 06902

    T: 203.921.0303 TF: 800.826.3505 F: 212.805.3939 Office Managing Partner: Matthew J. Van Dusen

  • Tampa

    Florida 33609

    4830 West Kennedy Boulevard, One Urban Center

    Suite 600

    Tampa, Florida 33609

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Anne E. Kevlin

  • Orlando

    Florida 32801

    618 E. South Street

    Suite 500

    Orlando, Florida 32801

    T: 813.509.2578 TF: 800.826.3505 F: 312.606.7777 Office Managing Partner: Anne E. Kevlin

  • San Francisco

    California 94111

    100 Pine Street

    Suite 1250

    San Francisco, California 94111

    T: 415.745.3598 TF: 800.826.3505 F: 949.260.3190 Office Managing Partner: Ian R. Feldman