The U.S. Supreme Court decided the case of Bostock v. Clayton County this week. Title VII of the Civil Rights Act of 1964 bars employment discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The main issue in this case is whether the word “sex” in this statute implies a ban on sexual orientation discrimination even though the statute doesn’t explicitly mention sexual orientation and Clayton County treated both genders the same without favoring one over the other.
Justice Gorsuch acknowledges that, “Discrimination sometimes involves ‘the act, practice, or an instance of discriminating categorically rather than individually.’” Gorsuch dismisses this potential source of ambiguity here, because Title VII uses the word “individual.” But, Title VII does not bar discrimination “because of such individual’s race, color, religion, sex, or national origin, with or without disfavoring any such category.” Justice Gorsuch incorrectly infers those last eight words.
Remarkably, Gorsuch says that, “as we have seen, no ambiguity exists about how Title VII’s terms apply to the facts before us.” If there were textual ambiguity (which there is in spades here), then evidence about what Congress meant in 1964 would almost certainly prove that Congress did not mean what Gorsuch says the statute means.
Gorsuch writes that, “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.” The stuff before the comma apparently refers to a mental tendency or trait, so it’s unclear to me why the stuff after the comma refers to “actions” as well. There’s a big difference between thoughts and actions. An employer may not care what an employee thinks, and instead may only care what the employee does. If we turn from thoughts to actions, the “but for” test of causation becomes very different; switching the gender of an employee without switching the gender or sexual preference of his partner makes for a very unrealistic test.
All in all, it seems to me that this opinion has lessened the chance that Congress will update this old law, will inevitably lead to much greater policymaking regarding Title VII outside Congress, may inadvertently exasperate enough people to swing a presidential election, and paves the way for more legislating from the bench. For now, it looks like employers may still act against employees who are believed to be discriminatorily recruiting homosexuals or instead heterosexuals (the district court said, “Mr. Bostock became involved with a gay recreational softball league called the Hotlanta Softball League….Mr. Bostock actively promoted CASA [Clayton County Court Appointed Special Advocate] to softball league members as a source for volunteer opportunities”), and it also looks like prudish employers can continue to fire people of all sexual preferences and genders who are believed to engage in sex acts they don’t like.
In a constitutional democracy, there’s a right way and a wrong way to change policy, and this isn’t the right way.