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Article Summary

The U.S. Supreme Court's admirably clear decision in Bostock v. Clayton County destroys the argument that federal law has nothing to say about workplace discrimination against gay and transgender people. Still, LGBTQ+ employees will now need to defend their victory against a growing wave of religious-liberty claims.

This expert analysis by TELG managing principal R. Scott Oswald was published by Law360 on June 15, 2020.

Reprinted from:

A Huge Step for Workplace Justice – But Battles Remain Ahead

By R. Scott Oswald

Today’s decision by Justice Neil Gorsuch in Bostock v. Clayton County, Ga. and its associated cases is a U.S. Supreme Court landmark that shuts down forever the unsavory argument by employers that federal law has nothing to say about discrimination against gay and transgender people in the workplace.

That’s a huge victory: No longer must LGBTQ+ employees struggle to convince judges, case by painful case, that they have a right even to challenge injustice on the job.

Yet despite its common-sense framing and unambiguous language, Justice Gorsuch’s historic 6-3 opinion preserves one big carveout for employment bias — and not just on the basis of sexual orientation or gender identity.

Excusing all manner of discrimination under the rubric of “religious liberty,” it seems clearer than ever, remains top-of-mind for the court. The majority in Bostock says that religious justifications for discrimination may “merit careful consideration,” while Justice Samuel Alito’s furious dissent rejects the decision as an outright threat to “freedom of religion.” Justice Brett Kavanaugh also raises religion in a footnote to his separate, and mostly milder, rebuke.

We should be grateful that no religious claim was before the court in the three cases disposed today by Judge Gorsuch’s opinion: At least we have clarity as to the justices’ default position on LGBTQ+ equality.

What might convince the court to set aside its default, however, remains up for grabs — and may be illuminated within weeks, as the justices are set to rule on the scope of a “ministerial exception” to workplace discrimination laws.

If the conservative Justice Gorsuch made an unlikely (but welcome) ally for employees in Bostock, he is unlikelier still to side against employers who assert religious claims.

A Victory for Framing

The issue in Bostock and its two associated cases was crystal clear: Does the sex-discrimination provision of Title VII of the Civil Rights Act of 1964 forbid employers from firing workers for being gay or trans?

“The answer is clear,” writes Justice Gorsuch. “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.”

This is, above all, a demonstration of the power of framing a legal issue effectively.

Over the course of 30 years since Price Waterhouse v. Hopkins — a Supreme Court case that revolved around how an employer believed a woman employee “should” look or act — advocates have increasingly relied on closely related, easy-to-understand examples of why LBGTQ+ discrimination is a flavor of sex discrimination, not a separate offense.

Justice Gorsuch repeats several such examples in his opinion, including this:

Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

To be sure, it has taken decades for this simple framing to catch on. But once you see it, you can’t unsee it — not even if you’re a card-carrying member of the Federalist Society, it seems.

And now it is the law of the land.

With the zeal of a convert, Justice Gorsuch couches this opinion in the language of the late Justice Antonin Scalia, claiming that the plain text of Title VII brooks no other interpretation — an argument that appears to drive the dissenters crazy.

Rear Guard Action

“[N]o one should be fooled” by the textualist trappings of the Bostock decision, Justice Alito writes in a dissent joined by Justice Clarence Thomas. It “is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated.”

Indeed, all three diverse opinions in Bostock are from conservative justices who claim to sail under Justice Scalia’s ensign — showing that textualism, whatever its merits, is far from an objective exercise.

The dissents themselves are a mixed bag. On the one hand, Justices Alito and Kavanaugh are correct that it can’t be downright unreasonable to assert that Title VII doesn’t protect gay and trans people — even if it is ultimately wrong — since so many courts and agencies have asserted exactly that, even until recently.

On the other hand, Justice Alito is sour and tone-deaf (at best) in his recounting of the mistreatment of gay and trans people at the time Title VII was passed.

“[T]he plain truth is that in 1964 homosexuality was thought to be a mental disorder,” he says, “and homosexual conduct was regarded as morally culpable and worthy of punishment.”

Well, that certainly was true for at least some people, but Justice Alito’s ensuing cold, detailed, multipage litany of contemporaneous anti-gay measures — not to mention the appendices of supporting documents — has an over-anxious insistence about it, as if he fears such hatred might be forgotten, while his pro forma recognition of “the injustice of past practices” is tepid and followed by an avowal that rectifying the situation “is not our job.”

Justice Kavanaugh also thinks that the majority decided to write law rather than interpret it, yet outside his argument he tries to position himself as a nonpoisonous supporter of the ultimate outcome. He even claims, weirdly, that “a new law to prohibit sexual orientation discrimination was probably close at hand,” and says “[i]t was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.”

Yeah, maybe — but only if Justice Kavanaugh also pictured his nominator and his confirmers in the U.S. Senate, many of whom have opposed LGBTQ+ civil rights measures, going down in flames in November. Evidently his colleagues in the majority were not so sanguine as to leave that one to Fate.

Anyhow, this admirably clear decision is now in the books; gay and trans employees have legal recourse for on-the-job discrimination anywhere in our land. Their battle will continue on two fronts: To consolidate and extend this huge victory, in the workplace and beyond, and to defend it against a growing wave of religious-liberty claims, which will target their rights disproportionately.

For now, it is enough to have a solid statement of law on which we can build: “An employer who fires an individual merely for being gay or transgender defies the law.”

—–

R. Scott Oswald is managing principal of The Employment Law Group, P.C.

(Note: This version has been edited slightly from, and carries a different headline than, the version published by Law360.)

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