Bostick v. Clayton County Georgia

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). 

46 thoughts on “Bostick v. Clayton County Georgia

  1. 7

    So who here thinks that intent should be imported into title VII while also thinking that the intent should not be imported into the 1952 patent act with respect to diaper services?

  2. 6

    Well, at least now we know that the robed rogues don’t only have it in for patent law: just as they read a non-existent patent eligibility requirement into the patent statute, here they read “sexual identity” into a statute that says “sex”.

    1. 6.1

      Because “Sexual Identity” (whatever that is) differs from “Sex” (whatever that is).

      OK then.

      1. 6.1.1

        Both “whatevers” are actually covered as defined terms in the decision, Marty.

        Unlike, say, “abstract,” and “something more.”

      2. 6.1.2

        Dude you must be really wrinkly after all these years under water. At some point we are hoping you will catch up.

        1. 6.1.2.1

          I have to wonder just how much analysis went into his comment at post 2, if he hadn’t bothered to even note how off-base his “whatever” comment is.

          Did he do no more than note who may have agreed with his personal preferences?

          1. 6.1.2.1.1

            Yes, they were defined as inextricable. That WAS the decision.

            1. 6.1.2.1.1.1

              The decision is not the defining of terms.

              The decision purports to use the (separate) definitions of the terms.

              Anywho, your comment above in the tone of “whatever” just does not fit the decision (no matter how you want to take that decision), which is rather the shortcoming that you are being taken to task for here.

    2. 6.2

      Similarily, we can see how certain posters don’t only fail to comprehend their opposition’s arguments in patent law.

      1. 6.2.1

        u m, ok.

        What is your point exactly?

  3. 5

    This is a case of applying our laws and the Scotus did the right thing.

    1. 5.1

      I am not yet through the massive decision, but Night Writer, have you hit this part yet:

      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.

      1. 5.1.1

        Yeah it is the same old problem of shifting word meanings and values.

        Probably they didn’t.

        1. 5.1.1.1

          “Yeah it is the same old problem of shifting word meanings and values.

          Probably they didn’t.”

          So in other words this decision is entirely horseshit because now basically laws mean nothing solid since “shifting word meanings and values” can morph them into entirely different laws? What’s the point of the rule of law in such a case? It’s just going to be rule by judges and the mob, not of law.

          1. 5.1.1.1.1

            6 – I can neither agree with you or disagree with you (yet).

            Both sides make some interesting arguments, and I have not fully digested the decision yet.

            My comments to date have more to do with those seeking outright dismissal of an opposing viewpoint, and appear to be doing so on nothing more than their pre-existing belief structure.

          2. 5.1.1.1.2

            Wow. After 10 years, 6 says something intelligent.

            1. 5.1.1.1.2.1

              Which is one more time than mooney in 14 years.

              1. 5.1.1.1.2.1.1

                Malcolm did manage to hit the 15 year mark this February, before departing this March.

        2. 5.1.1.2

          No word shifting required.

          If the law says ‘”you can’t treat people differently based on their sex” and you fire Alice for dating Cathy, but don’t fire Bob for dating Cathy, well, you are indeed treating Alice and Bob differently based on the presence of absence of dangly bits.

          Pretty straight-forward, no?

          1. 5.1.1.2.1

            The law doesnt say that, try reading da law. It prohibits sex based discrimination, nit dating preference/behavior discrimination. Literally that was its meaning for like 50 years, not even shitting you, even near all top dems agreed last year.

      2. 5.1.2

        This part of the majority opinion which you quote* [and others] makes very clear that this is a conservative statute interpretation “textualist” decision [as noted at 1 below and by many commentators] not a public policy [or religious views] decision.
        *”..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.”

        1. 5.1.2.1

          This is being spun as a textualist decision, Paul, and that spin is being directly challenged in the first dissent.

          Any notion of “very clear” is also being challenged.

          As with most anything coming from the Supreme Court, one should be wary of blindly accepting spin.

          Let me know when you get to that part of the decision (I don’t mind the weight, it is a very long decision).

          1. 5.1.2.1.1

            It is a fine line. If it was passed today, then the answer is a clear yes.

            But it is not a public policy decision in my view as typically this means overriding something to get the desired result and not adjust the meaning of words for contemporary meanings.

            Cruel and unusual use not to apply to pillaring people, but now it does.

            1. 5.1.2.1.1.1

              It indeed may be a fine line.

              That’s probably why I have not yet decided whether it was a good LEGAL decision.

              It was definitely a good and noble Ends.

              The “adjust for contemporary meaning” argument does not hold a lot of weight — especially given the subsequent attempts in Congress to render a law that the Supreme Court now has rendered.

              And again, the debate is NOT what the law should be. There is ALSO an underlying issue vis a vis Separation of Powers as to whether the Court’s action is even permissible (even if you WANT to rewrite the laws to make them current).

              The “cruel and unusual” example you share looks good on the surface, but fails a more critical evaluation. To see this, consider an act of Congress that defines just what is deemed “cruel and unusual,” and then subsequent Congressional attempts to modify a list of particulars. Those attempts do not pass – signifying that THOSE very meanings simply were BOTH not intended to be included in the originally passed legislation AND could not pass of their own accord.

              It is pretty clear in such a situation that “contemporary” adjustments are not only improper in and of themselves, but any such action by a different branch of the government should be treated as highly suspect.

              1. 5.1.2.1.1.1.1

                “good LEGAL decision.”

                It’s a fcking horrible legal decision. Doing this sht by judicial fiat just leaves pieces laying around everywhere. It needs to be done by legislation precisely crafted. This is the exact reason that we are having bullsht issues with other “muh social rights” things now that were created by having judges do this kind of nonsense back 50+ years ago. “o well we’re going to stretch the meaning of this other statute to “protect” this extra group in x y z way” then leads inevitably to even more bs situations on down the line, creating even more legislative/legal uncertainty and further eroding the rule of law and the whole legal foundations of the country. Thus we arrive at the current juncture where it’s practically clown law.

                1. As noted above, 6 – I am not at a point yet at which I can conclude as you do.

                  I will say at this point that Separation of Powers is very much a critical aspect of the Rule of Law under our Constitution, and that the Supreme Court is NOT above the law or the checks and balances of the Constitution.

                  I will also say that as attorneys (and I realize that you are not one, so this is more to others), we have an ethical obligation to challenge the Supreme Court when they do step out of line and act not in accord with the Separation of Powers.

                  These though are not new positions from me.

                2. “I will say at this point that Separation of Powers is very much a critical aspect of the Rule of Law under our Constitution, and that the Supreme Court is NOT above the law or the checks and balances of the Constitution.”

                  May as well throw that idealistic rhetoric you heard in lawschool out the window bro. Your congress critters haven’t ruled you for a long time on many an issue, and this just makes it plain as day.

                  “I will also say that as attorneys (and I realize that you are not one, so this is more to others), we have an ethical obligation to challenge the Supreme Court when they do step out of line and act not in accord with the Separation of Powers.”

                  I haven’t heard of one lawlyer “standing uplol” against the SC on any such ethical basis in my memory. It ain’t happening.

            2. 5.1.2.1.1.2

              Also, given the indications as being true (subsequent attempts NOT passing), I do not accept a mere assertion that if passed today, the meaning would “of course” be understood.

              As I understand it (and yes, I am still digesting it), the word “sex” did NOT carry any further connotations of sexual activity, preference or even necessarily self-identification, and instead was quite specific as to biologic and structural differences in the plain set of male/female.

              It is the majority (as I have already corrected you) that engaged in an insertion of contemporary meaning and “what Congress would have intended.”

  4. 4

    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).

    Taking someone to a Cleveland Browns game should be classified as a hate crime.

    1. 4.1

      Careful Random – you likely have microagressed someone given that Mayfield has said that he would take a knee.

  5. 3

    Meh, this one’s a lot closer than it looks (legal propriety wise) – and the 172 page decision (with several appendices) will need some time to digest.

    That being said, the opening lines of Alito are NOT “batsh*t” in and of themselves, and express a rather important ideal (and not uncoincidentally, one trampled to pieces when it does come to the statutory law that is patent law:

    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.

    Alito then recites efforts by Congress after the passage of the 1964 Act to put into the express law the very “interpretation” that the majority reaches.

    One has to seriously wonder if that interpretation was correct all along, what then was Congress doing with all those efforts?

    Alito’s comment then of:

    But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.

    Is more than a bit disingenuous. It’s rather EASY to recall more brazen abuses.

    1. 3.1

      Some people wear both a belt and suspenders, to prevent their own embarrassment.

      1. 3.1.1

        Apotu,

        This is NOT a case of ‘belt and suspenders,’ as that would be called out in a situation in which multiple aspects are passed at the same time.

        The point here was that the “belt” WAS passed, but Congress –as a whole — did not agree on passing “the suspenders.”

        I do understand what you are trying to say, but THAT only raises the question even more so rather than dismisses it: Is Congress in the habit of wasting our time (and money) with debating legislation for laws already on the books?

        So to Alito’s question of “The question is whether Congress did that in 1964.” – you would answer “yes,” and THEN the follow-on question is “Is it reasonable to say that all that successive effort was merely “we want to make sure” but was NOT defeated as “meh, no, that’s not necessary,” but instead, simply did not gather enough votes for support.

        ON TOP OF THAT set of questions, the larger thrust from Alito is in play: what has happened here is legislation from the Bench – under the guise of ‘interpretation.’

        I do “get” the majority’s view of “interpretation,” and I am not saying that I agree with Alito as to how he applies his opening statement to the facts of the case.

        All that I am saying at this point is that his opening salvo is probably the farthest thing from “batsh*t crazy” that one who understands the Separation of Powers could come up with.

        1. 3.1.1.1

          “Is Congress in the habit of wasting our time (and money) with debating legislation for laws already on the books?”

          I would say yes except that the word on the street is that literally every democrat of the congressional critter class said that the current law did not protect the groups seeking review and new legislation. Which, obviously, under a clear reading of the law it doesn’t, and under an originalist interpretation it didn’t. Indeed, there are now people fretting that all affirmative action will go down the tubes because the court departed from its prior way of interpreting this SAME statute. And they should be right to be concerned, the supremes can’t have it both ways.

          “All that I am saying at this point is that his opening salvo is probably the farthest thing from “batsh*t crazy” that one who understands the Separation of Powers could come up with.”

          To say the least.

          1. 3.1.1.1.1

            I chuckle at the pair of your responses yesterday 6.

            cf

            May as well throw that idealistic rhetoric you heard in lawschool out the window bro.

            and

            (and to my quote of: “All that I am saying at this point is that his opening salvo is probably the farthest thing from “batsh*t crazy” that one who understands the Separation of Powers could come up with.”)

            To say the least.

            As you so eloquently put it: “And they should be right to be concerned, the supremes can’t have it both ways.

            Neither can you in view of my Separation of Powers points.

    2. 3.2

      It is disturbingly ironic that this most conservative minority of 2 here is making a stretched ex post facto “congressional intent” argument [something it regularly attacks] against the more literal judicial interpretation of the majority for its desired judicial activism.

      1. 3.2.1

        Haven’t got there yet, but wasn’t the premise the opposite? That it was the majority that was doing the “congressional intent” argument?

      2. 3.2.2

        Alito’s outrage seems to gotten the better of him. I can understand him disagreeing with Gorsuch, but he seems to not even understand where Gorsuch is coming from.

    3. 3.3

      Is more than a bit disingenuous. It’s rather EASY to recall more brazen abuses.

      I hope you’re not comparing someone’s ability to monopolize presenting commercials to watch a video on the internet as analogous to systemic murder, oppression and bigotry over the course of decades.

      1. 3.3.1

        I hope that you realize that the sanctity of Rule of Law applies to both situations.

        Or is your version of post-modernism deciding what is a “real” concern and when the Rule of Law is optional?

        1. 3.3.1.1

          I guess I have my answer.

          1. 3.3.1.1.1

            Most likely, your guess would be in error based on your predispositions and willingness to NOT understand how the Rule of Law works.

  6. 2

    There is conservative, and there is batsh*t crazy. Alito & Thomas are batsh*t crazy.

    Kavanaugh is emotional and can’t be counted on, but he is not nutz.

    Roberts and Gorsuch are reasonable.

    1. 2.1

      Careful there Marty – if you are saying that because someone (or something) is emotional, that they can’t be counted on, as you would throw out ALL of the current political ongoings.

  7. 1

    Another Sup. Ct. opinion written by a conservative justice [Gorsuch here] that too many non-lawyers on both the far left and far right will find surprising. That is, if they don’t understand that many Sup. Ct. decisions are on statutory interpretations, and that conservative judges who are genuine “textualists” do not always vote against pro-liberal decisions* or in in accordance with the views of a president who appointed them. [Trump’s Justice Dept. strongly argued against this decision.]

    *If grudgingly, with a “we don’t fix Congressional drafting errors or unintended consequences” attitude.

    1. 1.1

      “Another Sup. Ct. opinion written by a conservative justice [Gorsuch here] that too many non-lawyers on both the far left and far right will find surprising. That is, if they don’t understand that many Sup. Ct. decisions are on statutory interpretations, and that conservative judges who are genuine “textualists” do not always vote against pro-liberal decisions* or in in accordance with the views of a president who appointed them. [Trump’s Justice Dept. strongly argued against this decision.]”

      I think you mean that conservatives might finally figure out that stopping “muh social change” via having the supreme court in their pocket won’t stop the leftist takeover of the government and laws you might be right. We will see though. Once “conservatives” finally figure this out, perhaps we will see some real political happenings in our times.

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