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Tuesday, June 16, 2020

Bostock: What took so long?

The following post is by my FIU colleague Kerri Stone, who teaches and writes on employment discrimination.

Civil rights champions everywhere rejoiced on Monday morning as the Supreme Court decided Bostock v. Clayton County, holding that an employer who terminates an employee because she is homosexual or transgender violates Title VII’s prohibition against discrimination “because of” sex.

The simplicity and clarity of this analysis makes one wonder, as so many have, how this question could possibly have remained open for debate and disagreement for the past 56 years since the statute’s enactment. And yet, as the Court observed, those who drafted and enacted Title VII “might not have anticipated [that] their work would lead to this particular result.” For, despite the fact that the plaintiffs’ arguments were undergirded by a long history of jurisprudence that made clear that evidence of sex stereotyping is, in fact, evidence of sex discrimination, this country has seen longstanding and widespread discriminatory animus and callous indifference towards the LBGTQ community.

As the Court noted, however, the evolution of antidiscrimination jurisprudence made this conclusion more or less inevitable. With the advent of so-called “sex-plus” claims that have been recognized as viable, whereby a distinct group within a protected class—like mothers of small children—can claim protection, has come the recognition that “because of” subsumes sometimes nuanced traits and actions of groups within groups that have been viewed through a different lens than they otherwise would have been because of their sex. With the Court’s recognition—more than two decades ago—that a viable claim for sexual harassment could lie where the victim and the harasser were both members of the same sex, came the understanding that no artificial, spurious bars would be placed upon protection where the “because of sex” requirement was concerned. And so decades of social and ideological momentum simply outpaced decades of irrational denial because, as the Court posited, “When the express terms of a statute give us one answer and extra textual considerations suggest another, it’s no contest.”

Considering how rare it is that the Supreme Court addresses itself the scope and contours of Title VII, when it does so, its words are parsed vigorously.  There is much in this opinion that remains, over the coming days, weeks, and years to be parsed and harnessed to address still open questions. For now, it is enough to mention but a few highlights. The Court made much of the capaciousness of the term “because of,” and thus of the concept of causation to be read into the statute. This is, of course, due to Congress’s 1991 declaration of a “more forgiving standard,” whereby plaintiff could “prevail merely by showing that a protected trait like sex was a ‘motivating factor’ in a defendant’s challenged employment practice.”

The Court also takes pains to break down the query before it to define prohibited sex discrimination as occurring when “an employer . . . intentionally treats a person worse because of sex such as by firing the person for actions or attributes it would tolerate in an individual of another sex.” It takes this approach to looking at the individual and what would have befallen her but for her sex, reminding us that the statutory language, itself, uses the work “individual” no fewer than three times. And it takes this approach even as it rejects the conception of actionable discrimination as only consisting of an “employer’s treatment of groups rather than individuals,” and Title VII as “simply with ensuring that employers don’t treat women generally less favorably than they do men.” The law has wrestled with these dual conceptions of its protections since its inception, despite, among other things, a Supreme Court case that explicitly rejected a “bottom line defense” for an employer who, after using discriminatory tests and criteria in its employee selection, claimed to have nonetheless ultimately recruited an amply diverse set of candidates. Excepting the “bottom-line defense” would have permitted the favorable treatment of a protected class to excuse individual instances of discrimination and accordingly provide a shield against a disparate impact suit. The message was crystal clear: Title VII does not merely protect entire classes from exclusion; it protects individuals from being winnowed out at any stage of the game because of their protected class status.

The Court is explicit about laying out the lessons that it extracts from precedent that makes its holding an inexorable conclusion. First, the Court peeled back the characterizations of discrimination. How often have we heard, “It’s not about sex; it’s about homosexuality/pregnancy/motherhood?” Discrimination is discrimination, irrespective of “what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Second, the Court says, “the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action.” Lastly, “an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.”

The Court is thus led to the inexorable conclusion that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” And it deftly answers the employers’ and dissents’ arguments that range from the textual (these are not enumerated protected classes), to the legislative-intent-based (Congress opted not to amend the statute), to the logical (an employer could, theoretically, discriminate against a job candidate based on homosexual or transgender status whose sex she didn’t even know).

The majority fires back, noting that, groups within enumerated protected classes can still be distinctly discriminated against because of sex, highlighting the example of mothers of young children. Moreover, it asserted, speculation about why Congress failed to act to amend the statute, whether it did so out of a belief that a broad construction of the statute obviated amendment or out of complacency, “offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt,” and also because legislative history is only to be consulted where an ambiguity presents itself in the course of statutory construction.

But the Court is strongest in its robust mental jousting with the dissents as to what makes for the soundest jurisprudence. Essentially, it says, though an employer may explicitly disavow sex discrimination, this doesn’t mean that when you unpack the implicit discrimination inherent in the larger rationale, (“Women are fine; it’s just pregnant people that are a problem”) you don’t find sex discrimination:

Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach. Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s hose is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.

          Finally, the Court rails against the notion that just because one could discriminate against a candidate because of sexual orientation or transgender status without knowing the candidate’s sex, this discrimination cannot possibly be discrimination because of sex. This is essentially a restatement of the argument that an employer can discriminate against a homosexual man and a lesbian at the same time and essentially be discriminating against no one because of sex. As the Court recites, this is simply not true; that would actually be properly viewed as two cases of sex discrimination. This is because the individual’s sex, known or not, and the way that they are being treated when their trait or action is viewed through the lens of their sex, is integral to the thought process that is occurring. As the Court says, it is an impossible task to explain sexual orientation or transgender discrimination, unpacking what it actually means to be gay or transgender, without making reference to individuals’ sex status.

From a social justice perspective, the implications of this opinion cannot be overstated. This express conferral of rights is so widely seen as overdue that even Justice Kavanaugh, who dissented because he could not get to the holding jurisprudentially, and felt that it would be incumbent upon Congress only to expand the construction of the statute as the majority did, reaffirmed:

the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

As with all monumental Supreme Court opinions, this one leaves us with more questions than answers, and more thoughts about its potential reach than surefire predictions and applications. Other statutes that regulate discrimination in things like housing and education also prohibit discrimination because of or on the basis of sex. Justice Alito admonishes in his dissent that the case’s holding may very well “threaten freedom of religion, freedom of speech, and personal privacy and safety.” Indeed, the majority acknowledges that some now posit that “under Title VII itself . . . locker rooms, and dress codes will prove unsustainable after our decision today.”  Moreover, as the Court said, “employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions.” Irrespective, the Court responded, these concerns are not attendant to the cases decided now, and these questions are thus best left for another day.

At the end of the day, a look back on this opinion after having read it takes one back to its perhaps initially cryptic opening lines about how “sometimes small gestures can have unexpected consequences,” but “[major] initiatives practically guarantee them.” This was Justice Gorsuch’s way of stating, from the outset, that this holding would not necessarily resemble anything ever necessarily contemplated by Title VII’s architects or the Congress that passed it. And this, Justice Gorsuch wants us to know, will be no impediment whatsoever to a result that is clear and readily derived from the statute, its treatment by courts for over fifty years, and common sense. This opinion enshrines in the law what had already been called for, derived and intuited by jurists, scholars, and advocates nationally for decades.

Posted by Howard Wasserman on June 16, 2020 at 12:25 PM in Constitutional thoughts | Permalink


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