It is a slow patent news day, but the Supreme Court offered a big employment discrimination decision in Bostick v. Clayton County Georgia (Supreme Court 2020).
The opinion joins together several cases challenging employment discrimination on the basis of gender identity (transgender) and also sexual orientation (homosexuality). Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of an “individual’s race, color, religion, sex, or national origin.” Here, the Supreme Court holds that gender identity and sexual orientation both fall with the ambit of “sex” and thus are also protected against discrimination.
Justice Gorsuch wrote the 6-3 majority opinion in textualist form:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. 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.
Slip Op. Beyond the importance of the holding, the Gorsuch opinion has a few lines that will be quoted and used in future cases:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.
Likely, [the legislators] weren’t thinking about many of the Act’s consequences that have become apparent over the years . . . But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.
In dissent, Justices Alito & Kavanaugh each argued that the Gorsuch opinion represented “legislation.” None of the decisions included any substantive discussion of the importance of either (1) the right of potential employees to not be discriminated against on the basis of gender identity and sexuality or (2) the right of employers to discriminate on those bases. The majority does indicate that it is not a problem to fire an employee for “supporting the wrong sports team” (or it is at least not a violation of Title VII).