{"id":12350,"date":"2020-09-22T11:26:26","date_gmt":"2020-09-22T15:26:26","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12350"},"modified":"2023-12-20T06:00:02","modified_gmt":"2023-12-20T11:00:02","slug":"bostock-v-clayton-county-this-summers-lgbtq-victory-the-challenges-ahead","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/bostock-v-clayton-county-this-summers-lgbtq-victory-the-challenges-ahead\/","title":{"rendered":"Bostock v. Clayton County: This Summer\u2019s LGBTQ Victory & The Challenges Ahead"},"content":{"rendered":"

By a 6-3 majority, the Supreme Court in Bostock v. Clayton County<\/em><\/a> held that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity.<\/p>\n

The decision consolidates three cases<\/a>: two involving gay men who were fired by their employers after their employers learned that they were gay and one involving a transgender woman who was fired after telling her employer that she would embrace her gender identity at work. All sued under Title VII of the Civil Rights Act of 1964<\/a>, which includes a prohibition on discrimination \u201cbecause of sex.\u201d They argued that because firing an employee because of their sexual orientation or transgender identity necessarily hinges on the employee\u2019s sex, it is discrimination on the basis of sex and is prohibited under Title VII.<\/p>\n

The majority in Bostock<\/em> agreed. The opinion, authored by Justice Gorsuch, found that discriminating on the grounds that someone is gay or transgender requires an employer to intentionally treat individual employees differently because of their sex and thus violate Title VII. The majority relied on four main arguments. First<\/a>, \u201cbecause of\u201d requires but-for causation, but it does not need to be the only but-for cause: so, when an employer fires an employee because she is homosexual or transgender, that employee is still fired because of sex, even though something else (romantic attraction, gender identity) is also motivating the firing. The presence of that \u201csomething else\u201d doesn\u2019t erase the \u201cbecause of sex.\u201d Second<\/a>, while Title VII requires intentional discrimination the employees still had a claim because, even though the employer\u2019s ultimate intent was to discriminate on the basis of gay or transgender status, that employer must intentionally discriminate because of sex along the way. Third<\/a>, Title VII is phrased in terms of how an employer may not treat an individual employee, so it is no defense for an employer to say there was not sex discrimination because one gay man, and not all<\/em> men, were discriminated against by the employer. Fourth<\/a>, the principles of statutory interpretation support this reading of Title VII. As the Court explained in Oncale v. Sundowner Offshore Services, Inc.<\/em><\/a> (a sexual harassment suit by a man who was harassed by men), something need not constitute the \u201cprincipal evil\u201d the statute was intended to address to be a violation of that statute. Furthermore<\/a>, failing to speak directly to a specific case that falls within a more general statutory rule does not create a tacit exception, so the Court applies the broad rule.<\/p>\n

Justice Alito, joined by Justice Thomas, dissented<\/a>. Justice Kavanaugh authored a separate but similar dissent<\/a>. The dissents argued<\/a> that the principles of statutory interpretation require interpreting statutes to mean what they conveyed to reasonable people at the time they were written. Justice Kavanaugh additionally emphasized<\/a> the need to interpret Title VII in light of its ordinary meaning, rather than its literal one. The dissents also argued<\/a> that Title VII\u2019s prohibition on intentional discrimination because of sex does not encompass everything that is defined in reference to sex. To do so, they rejected<\/a> the argument that Title VII is framed in terms of how an employer may not treat an individual, instead defining the prohibited discrimination as categorical. Lastly, the dissents argued<\/a> that the majority\u2019s definition of discrimination \u201cbecause of sex\u201d will have far-reaching consequences on areas including the Affordable Care Act and sex-segregated sports under Title IX.<\/p>\n

While the decision is certainly a victory for LGBTQ civil rights, it has real limitations. The Court explicitly<\/a> did not address the question of what happens when an employer claims Title VII compliance infringes on the employer\u2019s free exercise of religion, as the question was not properly before the Court.<\/p>\n

Relatedly, the Court has already granted cert<\/a> in Fulton v. City of Philadelphia<\/em>. There, Philadelphia terminated an adoption\/foster placement contract with a Catholic organization that violated the city\u2019s nondiscrimination policy by discriminating against same-sex couples. The Court will consider<\/a> whether the city\u2019s refusal to contract with the organization because it discriminates against same-sex couples\u2014which the organization argues is animated by strongly held religious beliefs\u2014violates the free exercise clause of the First Amendment. While previous cases suggested<\/a> that private businesses may have a First Amendment right to refuse service on religious grounds, this case is particularly concerning to LGBTQ advocates because it implicates the government\u2019s ability to adhere to non-discrimination policies in its own conduct (selecting government contractors to carry out its work).<\/p>\n

While Bostock<\/em>\u2019s promise may be limited by free exercise challenges in the future, it is likely to remain a powerful tool for LGBTQ people facing employment discrimination in many settings.<\/p>\n","protected":false},"excerpt":{"rendered":"

By a 6-3 majority, the Supreme Court in Bostock v. Clayton County held that Title VII protects employees from discrimination […]<\/p>\n","protected":false},"author":50,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[1671],"class_list":["post-12350","post","type-post","status-publish","format-standard","hentry","category-amicus"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-3dc","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12350","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/50"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=12350"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12350\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=12350"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=12350"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=12350"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=12350"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}