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Hunter Poindexter, Articles Editor, University of Cincinnati Law Review
I. Introduction
Last week, the Supreme Court delivered a landmark decision for LGBTQ rights. In Bostock v. Clayton County, the Court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender individuals from workplace discrimination. The Court’s decision was fairly surprising, as the Justices divided 6-3 in favor of the employees, with conservative Justice Neil Gorsuch authoring the opinion. The decision has, of course, brought forth some speculation on Justice Gorsuch’s ideological positioning on the Court. This article discusses Justice Gorsuch’s opinion in Bostock and how to reconcile that opinion with Justice Gorsuch’s conservative, textualist jurisprudence.
II. Background
In relevant part, Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer” to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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[.]” [1]Facially, the statute reads clear in regard to sex discrimination: no employer can make discriminatory employment decisions because of an individual’s sex. However, the issue of what actions may constitute sex discrimination has been litigated since the enactment of the statute. As Justice Gorsuch noted in his Bostock opinion, the Court has historically applied a broad reading of the statute, encompassing a vast array of conduct.[2] For example, in 1971 the Court held that an employer discriminates on the basis of sex when it refuses to hire a woman with young children where it would nonetheless hire a man with young children.[3] In 1989, the Court ruled that an employer commits sex discrimination when it makes employment decisions based on an employee’s failure to conform to gender stereotypes.[4] Furthermore, in 1998 the Court held that Title VII protects an employee from sexual harassment by coworkers of the same sex.[5]
Prior to the Court’s Bostock decision, a number of circuits had already ruled on the matter of sexual orientation under Title VII. For example, in Blum v. Gulf Oil Corp.,[6] the Fifth Circuit held that Title VII does not protect an individual from discrimination on the basis of sexual orientation. Likewise, in Evans v. Ga. Reg’l Hosp.,[7] the Eleventh Circuit, relying on Blum, rejected the notion that sexual orientation fell within the protections of Title VII. Alternatively, both the Second and Seventh Circuits have held that Title VII’s sex discrimination protections necessarily encompass an employee’s sexual orientation.[8] Therefore, when the Court took up the matter on a grant of certiorari, it put itself in a position to resolve a rather significant split among several circuits.
III. The Consolidated Cases
The Bostock decision was a joint opinion comprised of three cases: Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. Both Bostock and Zarda dealt with the issue of sexual orientation, and were consolidated for briefing and oral argument. Alternatively, Harris Funeral Homes concerned employment discrimination for transgender employees. In each case, an employer fired an employee for seemingly no other reason than the employee’s sexual orientation or gender identity.
A. Bostock v. Clayton County
The Bostock case was premised around the firing of a gay man in Clayton County, Georgia. Gerald Bostock was a highly regarded child services advocate in Clayton County for ten years until he was fired in 2013.[9] Bostock led the County’s Court Appointed Special Advocate program, and under his command, the program won several awards for excellence.[10] In 2013, Bostock began participating in a gay softball league.[11]After several prominent members of the Clayton County community made disparaging remarks about Bostock’s participation in the league, the County conducted “an unwarranted ‘audit’” on Bostock’s child services program.[12] Shortly thereafter, Bostock was fired for “‘conduct unbecoming of a county employee.’”[13]
Bostock subsequently brought suit against the county for discrimination under Title VII.[14] At trial, the District Court dismissed Bostock’s complaint, citing Evans’s holding that Title VII’s bar on sex discrimination does not protect an individual from discrimination on the basis of sexual orientation.[15] Further, the Eleventh Circuit affirmed the District Court’s dismissal of Bostock’s claims. On April 22, 2019, the United States Supreme Court granted certiorari.[16]
B. Altitude Express, Inc. v. Zarda
The facts in Zarda were similar to those in Bostock. Donald Zarda worked as a skydiving instructor at Altitude Express.[17] Prior to a dive, Zarda mentioned to a customer that he was gay.[18] Within a few days of the comment, Zarda was fired for, as Altitude Express claimed, “‘sharing inappropriate information with [customers] regarding his personal life.’”[19] Zarda filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) against Altitude Express, and then brought suit in federal court under Title VII and New York state law.[20] Prior to trial, the District Court granted Altitude Express’s motion for summary judgment on the Title VII claim, concluding that, under then-Second Circuit precedent, Title VII did not protect employees from discrimination for sexual orientation. [21] At trial for the state claim, a jury returned a verdict in favor of Altitude Express.[22] Donald Zarda passed away prior to the trial, but his estate executors were substituted in the litigation.[23]
On appeal, the Second Circuit initially affirmed the District Court’s grant of summary judgment; however, the Court of Appeals subsequently granted Zarda’s petition for an en banc hearing on the matter.[24] In its en banc decision, the Second Circuit reversed its prior ruling, holding instead that “sexual orientation discrimination is properly understood as ‘a subset of actions taken on the basis of sex.’”[25] Following the Second Circuit’s reversal, Altitude Express filed a petition for certiorari, which the Supreme Court granted on April 22, 2019.[26] The Court subsequently consolidated Zarda with Bostock for briefing and oral argument.[27]
C. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission
Unlike Bostock and Zarda, the facts of Harris Funeral Homes were premised on gender identity. Aimee Stephens, who was assigned a male gender at birth, was a funeral director at R.G & G.R. Harris Funeral Homes (“Harris Funeral Homes”).[28] After working at the funeral home for close to six years, Stephens informed her employer that she intended to work and live as a woman.[29] Within two weeks of apprising her employer of her decision, Stephens was fired.[30] Following Stephens’s termination, her employer openly acknowledged that he fired Stephens because of her transgender identity, and not her job performance.[31]
Stephens brought a discrimination charge to the EEOC, who then brought suit against Harris Funeral Homes on Stephens’s behalf.[32] At the trial level, the District Court rejected Harris Funeral Homes’ motion to dismiss, concluding that Stephens could bring a sex discrimination claim if she was terminated for a failure to conform to gender stereotypes.[33] However, the District Court later granted summary judgment in favor of Harris Funeral Homes because the Religious Freedom Restoration Act exempted the funeral home from Title VII requirements.[34] On appeal, the Sixth Circuit reversed, holding that Stephens’s termination for her transgender status, was, indeed, sex discrimination.[35] Harris funeral homes petitioned the Supreme Court for certiorari, which the Court granted.[36]
IV. The Bostock Opinion
In Bostock, the Court divided 6-3, with Chief Justice Roberts and the Court’s four liberal Justices joining Justice Gorsuch’s majority opinion, in full.[37] Unsurprisingly, Justice Gorsuch’s opinion was rooted in textualist jurisprudence. First, Justice Gorsuch set out to determine the “ordinary public meaning” of the statute’s text at the time of its enactment in 1964.[38] After parsing through the language, Justice Gorsuch acknowledged that the statute provided a “straightforward rule,” that “[a]n employer violates Title VII when it intentionally fires an employee based in part on sex.”[39] Having established this rule through the statute’s text, Justice Gorsuch then went on to determine whether an employer violates the rule by firing employees for sexual orientation or gender identity.
In analyzing the issue of discrimination for sexual orientation, Justice Gorsuch posed a simple hypothetical: Two employees are virtually identical, except that one is a man and one is a woman. Both employees are attracted to men. When the male employee is fired for being attracted to men but the female employee is not, the male employee has been discriminated against on the basis of sex.[40] Justice Gorsuch then posed a similar hypothetical as it relates to gender identity: An employer fires a transgender employee who identifies as a female but was assigned a male sex at birth. If the employer then hires an identical employee who identifies as a female and was assigned a female sex at birth, “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.[41]” To that end, the majority held that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]”[42] Further, the majority opinion concluded that an employer cannot escape Title VII liability merely because it fires all gay or transgender employees, regardless of their sex.[43] Rather, in that case, the employer would “double[]” its liability under Title VII.[44]
The majority opinion also rejected an argument that, in 1964, Congress could not have intended for Title VII to encompass protections for gay and transgender employees.[45] Rather, Justice Gorsuch concluded that legislative history and intent should only be consulted when a statute is ambiguous, which was not the case here.[46] Because the text of Title VII is clear, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”[47] For, as Justice Gorsuch wrote, “[w]hen the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is law, and all persons are entitled to its benefit.”[48]
Justice Gorsuch appears to have written Bostock with a broad audience in mind. Although the Court was tasked with analyzing the textual structure of Title VII, Justice Gorsuch drafted the opinion in a manner easily understandable by both the legal community and non-lawyers, alike. For example, in reviewing the “ordinary public meaning” of Title VII, Justice Gorsuch broke down the statute step-by-step, explaining throughout the opinion the meaning of certain legal phrases, such as “but-for causation.”[49] Additionally, as aforementioned, the opinion is teeming with hypotheticals and examples to help explain the Court’s rationale behind its decision. Admittedly, the opinion’s appeal to a broad audience is unsurprising; Bostock effectively protected the rights of millions of Americans from workplace discrimination, so the decision was sure to see heavy reader traffic.
V. Justice Gorsuch’s Jurisprudence
Let’s be clear about one thing early on: Bostock was a purely textualist decision. In briefing and oral arguments in the sexual orientation cases, Pamela Karlan, counsel for Bostock and Zarda, appealed to the Justices’ textualist nature. Chief among her arguments was that the language of Title VII, alone, properly encompassed sexual orientation, and that the Court had to play no activist role to find in favor of the employees. In fact, the sexual orientation hypothetical posed by Justice Gorsuch in the majority opinion was first posed by Karlan at oral arguments. With this in mind, Karlan was clearly making a textualist play, likely aimed at the Court’s more conservative members.
With this backdrop of textualism in mind, what does the majority opinion reveal about Justice Gorsuch’s jurisprudence moving forward? Likely not much. While Gorsuch admittedly wrote an historic opinion protecting the rights of the LGBTQ community, it is unlikely that we’ve seen the Court’s textual stalwart shift his ideological position. Justice Gorsuch is a self-proclaimed textualist, who often seeks to base his opinions in the written word of a statute.[50] As discussed above, Pamela Karlan played directly into Justice Gorsuch’s wheelhouse with arguments rooted in the express language of Title VII. Bostock was the perfect case for a textual jurist; the majority opinion was anchored in dictionary definitions and canons of statutory construction. Justice Gorsuch had to do no reaching here, as Karlan and the text of Title VII brought him to an answer. So, no, Justice Gorsuch is most likely not going to be the Court’s new John Paul Stevens. But even then, the impact of Justice Gorsuch’s opinion should not be relegated merely to a conversation about his potential shift in ideological positioning. Rather, it is important to recognize the Court’s momentous decision in Bostock and acknowledge Justice Gorsuch’s contribution.
VI. Conclusion
In sum, we are not likely seeing the evolution of Neil Gorsuch following the Court’s Bostock opinion. No doubt, Bostock is a landmark decision which effectively protects the rights of LGBTQ employees from discrimination in the workplace. However, Justice Gorsuch is not now, and likely never will be, a liberal jurist. Rather, the Bostock decision was the result of convincing statutory text and effective advocacy. Even then, it is important not to discount how momentous Bostock is for the nation. Although Justice Gorsuch has likely not shifted to the left of the Court, his opinion in Bostock has nonetheless made a meaningful contribution to the rights of the LGBTQ community.
[1] 42 U.S.C. § 2000e-2(a) (emphasis added).
[2] 2020 U.S. LEXIS 3252 at *37.
[3] Phillips v. Martin MariettaCorp. 400 U.S. 542 (1971).
[4] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
[5] Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
[6] 597 F.2d 936 (5th Cir. 1979).
[7] 850 F. 3d 1248 (11th. Cir. 2017).
[8] Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). Zarda would go on to be consolidated with Bostock at oral argument before the Supreme Court on a grant of certiorari.
[9] Brief for Petitioner at 4, Bostock v. Clayton County, No. 17-1618 (June 26, 2019).
[10] Id. at 5.
[11] Id.
[12] Id. 5-6.
[13] Id. at 6.
[14] Id.
[15] Id.
[16] 139 S. Ct. 1599 (2019).
[17] Brief of Respondent at 3, Altitude Express, Inc. v. Zarda, No. 17-1623 (June 26, 2019).
[18] Id. at 4.
[19] Id.
[20] Id. at 4-5.
[21] Id. at 5.
[22] Id. at 6.
[23] Id. at 5.
[24] Id. at 6.
[25] Id. at 6-7.
[26] 139 S. Ct. 1599 (2019).
[27] Id.
[28] Brief of Respondent at p.4-6, R.G. & G.R. Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107 (June 26, 2019).
[29] Id. at 7-8.
[30] Id. at 9.
[31] Id. at 9.
[32] Id. at 11-12.
[33] Id. at 12.
[34] Id. at 12-13.
[35] Id. at 13-14.
[36] 139 S. Ct. 1599 (2019).
[37] 2020 U.S. LEXIS 3252 (2020).
[38] Id. at *12.
[39] Id. at *20.
[40] Id. at *21.
[41] Id.
[42] Id. at *36.
[43] Id. at *40.
[44] Id.
[45] Id. at *44-45.
[46] Id.
[47] Id. at *10.
[48] Id.
[49] Id. at *15.
[50] Neil M. Gorsuch with Jane Nitze & David Feder, A Republic If You Can Keep It 128-44 (2019).
