Bostock v. Clayton County
From 2003 to 2013, Gerald Bostock, a gay man, worked for Clayton County, Georgia as a child welfare services coordinator. During his ten years with the county, Bostock consistently received positive performance reviews as well as numerous accolades commending his superior performance. In 2013, Bostock joined a gay recreational softball league. For this, as well as for his sexual orientation more generally, Bostock was disparaged and criticized by his colleagues in the Clayton County government. At about the same time, officials of the Clayton County government informed Bostock that they were performing an internal audit of the program funds he managed. Shortly after, Bostock was terminated by Clayton County for “conduct unbecoming of its employees.”
Bostock challenged his termination soon after by filing a charge of discrimination with the Equal Employment Opportunity Commission. In 2016, Bostock followed up by filing a pro se lawsuit against the county. He argued specifically that the county had discriminated against him on the basis of sexual orientation, in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e. The Federal District Court dismissed his lawsuit, finding that Bostock’s claim relied on an interpretation of Title VII as prohibiting sexual orientation which had been denied in a 1979 case and again reaffirmed by the United States Court of Appeals for the 11thCircuit in Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. 2017).Bostock appealed the federal district court’s ruling to the United States Court of Appeals for the 11thCircuit, the same court that had ruled on Evansjust a year prior. Unsurprisingly, the Eleventh Circuit affirmed the lower court’s ruling that Title VII did not encompass discrimination on the basis of sexual orientation and, therefore, Bostock had no valid claim to discrimination. Bostock then filed a petition to the Supreme Court of the United States, which granted Certiorari in April of 2019, consolidating the case with Altitude Express v. Zarda. At issue in both cases is whether or not Title VII of the Civil Rights Act of 1964 protects against discrimination on the basis of sexual orientation.
Upon the facts and logic of this case, the answer to the question at hand is a resounding “yes.” That is, Title VII does, in fact, protect against discrimination on the basis of sexual orientation. Any ruling otherwise would ignore the fact that sexual orientation and sex are inextricably linked. In, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)., the Supreme Court ruled that employment decisions based on an individual’s conformity to the stereotypes associated with their gender constitutes discrimination on the basis of sex in violation of Title VII. The logic of the Court has been that those who are punished for actions that contradict the stereotypes of their own gender are necessarily being punished for action that a person of the opposite sex would not similarly be punished for. This attention to necessarily unequal outcomes has been emphasized by the Court since its first ruling on sex-based discrimination in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)where the Court ruled it illegal to deny qualified persons a job for something that an individual of the opposite gender would not similarly be denied for. This was further cemented by City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978),where the Supreme Court created the simple one question test for discrimination on the basis of sex: “[does the evidence show]treatment of a person in a manner which, but for that person’s sex, would be different?” Id., at 435. In this way, discrimination on the basis of sexual orientation and discrimination on the basis of sex are inseparable. That is, an employment policy that forbids employees from engaging in homosexual behavior is inherently discriminatory in how it treats different genders. For example, if two employees, one male and the other female, are both engaged in a relationship with a male, but only one is punished for doing so, then that punishment is self-evidently unequal and discriminatory. Therefore, that person is being arbitrarily treated differently than they would be treated if they were of the other sex. In this way, discrimination against homosexuals fails that test established in City of Los Angeles Department of Water and Power.
This court upholds the test established in Manhart. One of the guiding motives behind 42 U.S.C. § 2000e., as plainly stated in it’s name was to ensure “equal employment opportunity” for all people regardless of their sex. Further, as noted by Justice Brennan, writing on behalf of the CourtCounty of Washington v. Gunther, 452 U.S. 161 (1981), “In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id., at 452.While I concede that homosexual relationships have been historically and continually rejected by many different religions and societies, the expectation that a man ought to be with a woman and vice versa, though it may arise from a fiercer and more deeply rooted societal expectation, is still, practically speaking, a mere stereotype. The fact that homosexuality does invoke such reactions should have absolutely no bearing on this court’s decision.
Notably, 42 U.S.C. § 2000e.does make an explicit exception to this rule in Section 703 where it notes “[There are] certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of … [a] business.” What this means is that there are instances in which it is appropriate to prefer a certain gender in a job where it serves a practical purpose. For example, if a modeling agency is looking for somebody to model women’s clothes, it is okay for them to favor women over men as the casting of female models will be more favorable to the company because it will likely generate more sales than an advertisement with a male model would. In this way, this distinction would be “reasonably necessary” for the business and can therefore justify their different treatment of the two sexes. Importantly, the respondent does not claim a Bona Fide Occupational Qualification (BFOQ) in this case and therefore the argument that Mr. Bostock’s homosexuality somehow impairs his work is not at play here.
The Eleventh Circuit Court’s ruling against Mr. Bostock cited a similar ruling made set by their own decision just 3 years before in Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. 2017). That decision was further built on Simonton v. Runyon, 50 F. Supp. 2d 159 (E.D.N.Y. 1999), Fredette v. BVP Management Associates, 905 F. Supp. 1034 (M.D. Fla. 1995). Similar conclusions have been drawn in at least ten other appellate court decisions. All of these cases have essentially concluded that 42 U.S.C. § 2000e. does not apply to sexual orientation and therefore any claims of discrimination on that basis are not actionable. It is worth noting, however, that the circuit courts are split on the issue at hand with cases like Kimberly Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), which held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of . . . sex’. ” Id., at 351-52.Further, in Evans, the Eleventh circuit court dismissed claims that sexual orientation discrimination was protected by 42 U.S.C. § 2000e., writing that “to say that an employer has discriminated on the basis of gender non-conformity is just another way to claim discrimination based on sexual orientation.” Id., Evans, at 2.The court reasoned that gender non-conformity “rests on …sexual orientation no matter how it is otherwise categorized.” Id., at 2. I believe this to be the exact reason sexual orientation is protected by 42 U.S.C. § 2000e.,. There are plenty of non-hypothetical circumstances in which gender non-conformity and sexual orientation are not one and the same. This is highlighted by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).where, although Hopkins was not homosexual, the court ruled that she had been discriminated based on her non-conformity to gender stereotypes in violation of 42 U.S.C. § 2000e.. To make an exception to the illegality of gender stereotype discrimination on the mere basis that sexual orientation is entirely different from sex is inherently self-contradictory. If sex and sexual orientation were not clearly linked than no such exception would have to be made in the first place. The only differences that seem to separate sexual orientation from other gender stereotypes are societal, not legal and are of zero legal importance to the courts.
The Respondent cited this court’s opinion in Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014)., (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)) that “[i]t is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning” to argue that this court should not apply our understanding of sex as we understand it today, but as it was understood in the context of the law’s passage in 1964.Id., Perrin, at 42.They further argue that “Sex,” as it was understood in 1964 meant “biologically male or female” and was, in this way, something completely distinct from sexual orientation. Thus, the conclusion that the respondent is attempting to lead us to is that sexual orientation and sex were altogether different concepts and thus to say that protections against discrimination on the basis of sex also protect against discrimination on the basis of sexual orientation is flawed. However, the respondent misses the problem. “Sex,” even as we understand it today, is self-evidently a different concept from sexual orientation. To say that they are the same thing is to deny objective facts. However, this court still believes the two concepts to be inextricably linked as knowing an individual’s sex, or whether they are “biologically male or female” is, in practice, a necessary element to understanding their sexual orientation. While I do concede that it is, in theory, possible for an employer to take action against an employee in response to that person’s homosexuality without knowing the gender, such a hypothetical is extremely unlikely. Further, the simple fact is that these hypothetical circumstances are not true for the case we have in hand. However, this criticism still merits a response because to make such a distinction between sex and sexual orientation does, at least on the surface, seem to contradict the conclusion that 42 U.S.C. § 2000e.does protect against sexual orientation discrimination by way of its protections of sex. However, there is still a clear legal problem with blanket policies that punish homosexuality, which is that they are still built on arbitrary gender stereotypes. That is, equal discrimination of gay men and lesbian women does not overcome the fact that such discrimination is still punishing individuals for merely engaging in behavior that is deemed to be in opposition with the stereotypes of their gender. As previously noted, this court has held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). that punishing somebody for non-conformity to gender stereotypes is illegal under the abolition of discrimination based on sex more generally. The court made this decision in light of the fact that it is possible, in the abstract, to have a blanket policy which punished both genders equally for not conforming to gender stereotypes.
In this way, the argument that we must look not at the actual text of the legislation but at the intentions of the 1964 congress falls by the wayside. The defense has urged us to think about the context in which the law was made, read into the minds of the legislators, and assume an exception to the rules that are clearly laid out in the text of the law. They argue specifically that sexual orientation protection could not have been in the minds of congress as male same-sex relationships were still illegal in many states and congress has, to this day, failed to enact protections against same-sex discrimination. Thus, this raises a genuine concern that, for the courts to say that the Civil Rights Act of 1964 does protect against sexual discrimination, is essentially the same as us acting as a legislature and passing a new law. However, my conclusion is that the text of the law that the 1964 congress enacted does protect against sexual orientation by way of its inextricable link with protections against sex discrimination. In fact, I believe any attempts to impose our judgement and overturn the natural conclusion that the words set forth by the legislature in 1964 would be an act of judicial activism. In order for an unelected judiciary to essentially overturn the words as they apply to this one group, we would need a compelling body of evidence proving that this was not the legislature’s intent. Further, as then Justice Rehnquist noted writing for the court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), “[t]he prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives… the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’” Id., at 63.Thus, the high burden required for this court to infer a conclusion contradictory to the one brought upon by the text of the statute in question is not met. Further, as Justice Sotomayor noted in oral arguments, “the lodestar of this Court’s statutory interpretation has been the text of a statute, not the legislative history, and certainly not the subsequent legislative history.”
The majority of the originalist arguments advanced by the respondent rely upon the subsequent legislative history. There are two glaring problems with this. Firstly, as noted by this court in Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) the “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.”Id., at 496.Secondly, this is especially true as it relates to the use of subsequent legislative inaction in deducing a legislative intent. In U.S. v. Price, 361 U.S. 304 (1960), this court noted that “non-action by Congress affords the most dubious foundation for drawing positive inferences.”Id.,at 311. This same notion was also noted in Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990), where the court stated that “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.”Id.,at 650. In short, if ever there were a case in which we would break from the court’s lodestar of following the text of a statute, it would certainly not be this one as the legislative history is not nearly as compelling or even complete as it needs to be.
The respondent has further argued, however, that as long as the penalties are equally assigned to both males and females who are engaged in homosexual activity then the practice is equal and therefore in accordance with 42 U.S.C. § 2000e.. In both of the cases in question, however, both of the petitioners are male homosexuals and there is no evidence of their respective employers imposing the same penalties onto lesbians. Of course, that’s not to say they do not or would not, in fact, employ the same penalties but there is room for doubt as gay men have been historically more discriminated against than have, lesbian women. This is most highlighted by the fact that the discrimination of gay men can be traced back to both Leviticus and common law while the same cannot be said about lesbian women. With the loaded and clearly dissimilar histories of the treatment of gay men and lesbian \women in mind, this idea of an abstract concept of “sexual orientation” without reference to sex seems to pay little attention to the realities of sexual orientation discrimination both past and present.
Further, the Supreme Court has rejected similar arguments pertaining to equal application in the past that were advanced in Loving v. Virginia, 388 U.S. 1 (1967). In Loving, the commonwealth of Virginia argued that their law banning interracial marriage was not a violation of the Equal Protection clause of the 14thamendment as their law “equally burdened” both whites and non-whites. In citing this, Virginia was relying on a precedent set in Pace v. Alabama,106 U.S. 583 (1883).The court rejected this argument and overturned unanimously in Pacewith the Chief Justice Warren writing on behalf of the entire court that “mere equal application” was far too low a standard to uphold the law.Id., Loving., at 8. Instead, the court also looked at the purpose of the law and found it had no compelling purpose for the law, but instead were motivated by racial prejudices. While I concede that the specific issues at hand in that case were different (namely that the case pertained to statutory racial discriminations as a violation of the 14thamendment), I believe the logic of the Loving ruling can be appropriately extended to sex discrimination in violation of the Civil Rights Act of 1964. In upholding these discriminatory practices on the mere basis that both gays and lesbians are discriminated equally, the court would neglect the fact that, no matter how equally applied these employment policies may be, these employment policies are not only arbitrary and similarly motivated by prejudices, but are also based essentially on gender stereotypes, something that the court, as noted previously, has repeatedly struck down and, as I have expressed, has done so correctly.
The taboo against homosexuality is, at its core, no different than any taboo or stigma against gender stereotype violations. In the legal realm, firing somebody for being a homosexual ought not to be viewed any differently than firing an individual for their contradiction to gender stereotypes. The dismissal of a male for acting effeminately should legally be viewed no different than firing a man for dating another man. Both should be illegal under 42 U.S.C. § 2000e.on the logic that a member of the opposite sex would not similarly be punished for the same behavior. With this in mind, the respondent has made essentially no effort to even suggest otherwise nor do I think they could. Instead, they simply have argued that Sexual orientation is an altogether different concept from sex. However, they fail to acknowledge that such is also the case with one’s subscription to gender stereotypes. This court has ruled inPrice Waterhouse v. Hopkins, 490 U.S. 228 (1989)., that even though Hopkins was not necesarilly discriminated for being female, she was still discriminated on the basis of sex. In fact, Hopkins was discriminated because he was not masculine enough. Under the respondents’ arguments, this would seem like an erroneous decision. However, 42 U.S.C. § 2000e., vaguely outlaws discrimination “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s …sex.” The statute does not explicitly outlaw any specific discrimination beyond “sex” as in “biologically male or female.” On the surface, it would seem that the law merely abolishes discrimination against persons on the sole basis that they are male or that they are female. However, this court has repeatedly found that the concept of sex, and therefore the protections associated with it under 42 U.S.C. § 2000e.incorporates many other concepts that are inherently tied to sex. In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), Justice Scalia wrote for a unanimous court that Title VII“evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.”Id., at 78.This reference to “the entire spectrum” highlights this courts view that Title VII’s protections against sex discrimination are far more expansive and broad then mere discrimination for being “biologically male or female.” This same notion of an “entire spectrum” was similarly referenced by Justice Brennan in County of Washington v. Gunther, 452 U.S. 161 (1981). Among other things, this spectrum has historically included gender stereotypes, which itself includes the stereotype of the types of people each gender ought to be intimate with (i.e. sexuality). This historical view by the court of 42 U.S.C. § 2000e.as protecting against a “spectrum” of discrimination is in clear contradiction with the view that the respondents have urged us to take. This court upholds the historically more inclusive view of the previous courts.
The social stigma as well as the loaded religious and social history of homosexuals have caused the lower court to err by concocting a false distinction in which they have concluded that the sexual stereotypes associated with sexual orientation are somehow different enough from other sexual stereotypes so as to merit an exception to the rules previously established by this court. However, the simple fact is that, in cases of sexual orientation discrimination, individuals are being punished for violating a gendered expectation that the other gender would not similarly be punished for. Further, it is not the business of this court to arbitrarily impose personal inclinations, religious objections, and considerations of social discomforts where the law seems to be in contradiction with them. In making an arbitrary exception to the very clear and legally sound test set by this court in City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702 (1978), this court would be doing exactly that. Gerald Bostock was unlawfully discriminated on the basis of sex in violation of42 U.S.C. § 2000e..
Legal Citations
County of Washington v. Gunther, 452 U.S. 161 (1981)
Department of Water and Power v. Manhart, 435 U.S. 702 (1978)
Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. 2017).
Fredette v. BVP Management Associates, 905 F. Supp. 1034 (M.D. Fla. 1995).
Kimberly Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017)
Loving v. Virginia, 388 U.S. 1 (1967).
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)
Pace v. Alabama, 106 U.S. 583 (1883)
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990)
Perrin v. United States, 444 U.S. 37, 42 (1979)
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).,
Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014).
Simonton v. Runyon, 50 F. Supp. 2d 159 (E.D.N.Y. 1999)
U.S. v. Price, 361 U.S. 304 (1960)
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