Bostock v. Clayton County Analysis

In an unexpected yet welcoming surprise for many, the Supreme Court interpreted the law correctly and gave hope to millions of Americans who were at the mercy of intolerant employers. Are LGBTQ employees protected against discrimination in the workplace under existing civil rights laws? 

The answer, YES!  Justice Gorsuch wrote the Court’s opinion in a 6-3 ruling in Bostok vs. Clayton County, citing existing language to include sexual orientation or gender identity within the term “sex,” preventing discrimination under the Civil Rights Act of 1964.

Labor activities surrounded by employee and employer relationships are simple dynamics to understand.  The relationship is one of power and control.  Employees work for an employer and are required to perform a series of duties, tasks, or assume some sort of responsibility. Performance later turns into a “this for that” transaction of compensation, in exchange for work performed. 

To obtain employment by an employer, a prospective job seeker applies for job openings to become an employee.  Because of this, employers have the authority to not only hire but also the unbridled power to terminate employment as well. 

And, rightfully so.  It makes sense if an employee is incompetent at their job, the employer should not be required to maintain such an ineffective employee if proper cause exists when termination of employment is required. 

What happens when an otherwise competent employee is terminated because of an identity difference?  In addition, what is the appropriate relief when an employer admits that the specific difference is the reason they were targeted and fired in the first place? 

It seems as if the result should be an open and shut case in 2020 as intolerance and discriminatory practices should be a thing of the past.  A quick adjudication by the lower courts would offer relief under the Civil Rights Act of 1964. More specifically, Title VII of The Civil Rights Act of 1964 prohibits employers from discrimination on the basis of race, color, religion, sex, or national origin. 

However, that was not the case as a United States District Court upheld the firing of Gerald Bostock for being gay as, “unbecoming of a County employee.”  In an appeal the 11^th Circuit Court affirmed stating, “Title VII did not prohibit a targeted discharge for homosexuality.”  The Supreme Court granted his petition and joined the case with two other similar discriminatory actions. Altitude Express, Inc v. Zarda and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission.

The question before the court is one that can extend or deny protections to individuals who are discriminated against for simply being different.  Do people deserve equal protection under a law created to prevent the type of discrimination that Bostock v. Clayton County includes? Justice Gorsuch said yes, “Title VII makes it unlawful to discriminate against any job applicant or employee, because of such individuals sex.” 

Early in the opinion Gorsuch reasons, if sex plays a role in the termination of the employee, it was a decision to specifically target and rely on “sex” to conduct discriminatory practices. He follows with examples supporting the inclusion of the law:

“It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”

“Consider, for example, an employer with two employees, both of whom are attracted to men. 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. 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.”

“Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. 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. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

“When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”

The employee would not have been fired “but for” the sexual orientation or gender identity within the term “sex” in the respective cases.  Acknowledging this assisted the Court in its decision that not only did the individual suffer harm but the highest Court in the land would offer relief.  His rationale and reasoning point to discrimination plain and simple, attaching the protections of Title VII.

This case was about analysis of the law, applicability of the law, and purpose of the law. Not one of personal opinion or preference.  It may be more straightforward than that; employers cannot fire a person simply because their identities are not acceptable to them.  It is a win for equality, it is a win for the rule of law, and it is a win against blatant admitted discrimination. 

Critics of the Court’s ruling point to Judicial Activism.  However, that is a large reach.  In part, all it required from the Court was to address a discrepancy in a word, in an already important piece of legislation that has proven track record.  The judges did not write legislation, they simply defined what sex was in greater detail, encompassing and strengthening the protections of Title VII.  Their job was to interpret the language of the law in relation to the controversy at hand and that is exactly what the Court did.

The Court’s decision is what this country represents and what the Judicial branch offers; protection against those who would do the innocent harm and relief, including sanctions, when such behavior occurs.  This case was decided correctly and in accordance with the existing protections of Title VII, at the same time extending protections to those in need in the event a future discriminator causes harm. 

To fire, not hire, or discriminate on the basis of sex (or any other difference for that matter), regardless of what definition during a specific timeline is applied, is wrong and unbecoming of what it is to be an American.  No matter the box you checked on election night firing an employee by targeting their “sex” difference, is a bit 20th century.  An argument that a competent employee should not be protected from an arbitrary hateful act seems a bit frivolous, at the very least ignorant and extremely intolerant; as we all deserve equal protection under the law. 

Congress passed the Civil Rights Act with the intent to end this type of discrimination and proponents of this historic legislation would argue that it was one of the most important laws addressing Civil Rights inequities in America. This allows differences to have a chance at peace and protections amongst the majority who may not allow it.

It seems odd to me how quickly generations ignore truths from history as the introduction of the Civil Rights Act was met with protests, racial violence, and the call for more candidates that supported segregation in the hopes to undo the much-needed legislation, even by the standards of our current society. 

In fact, it was immediately challenged at the Supreme Court in Heart of Atlanta Motel v. U.S. and the Constitutionality of the act was upheld by the Supreme Court.  How serendipitous it is to have a challenge to the law upheld 57 years later?  A law made to prevent discrimination is still preventing discrimination.

Faith in the legislation process proved to be correct. It is not that far of a reach to logically understand when a group is targeted America must offer protection to its citizens from unscrupulous actors.  If the purpose of the Civil Rights Act was to protect people from discrimination, then justifiably it should encompass all people.

If people do not possess the right to be protected against discrimination, then the opposite must be true; people possess the right to discriminate against differences.  Our system was meant to protect people against that type of bigotry.  This must remain a premise and a continued belief for future generations.

If people can prevent discrimination or correct a harm done to a victim, I say plow ahead and create equity in a system that is lacking.  For America must always remain a beacon of hope, tolerance, and progress. 

For more information and the complete Supreme Court opinion, please follow the link below.

*17-1618 Bostock v. Clayton County (06/15/2020) (supremecourt.gov)

We are all in this together; however, the future may require concessions and a deeper understanding from all sides as the fight for equality is a continuous endeavor with competing interests that may need balanced beyond our understanding.  America and her citizens are fortunate to have a system allowing growth and inclusion of the law.  More importantly, the future looks hopeful as she has those willing to fight and stand against injustice(s).