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US Supreme Court Ruling Widens the Ambit of Protection Under Title VII to Cover the LGBTQ Community

By Esha Joshi and Ruchir Joshi

Summary


The article focuses on:

  • The significance of the judgement in light of the present day position of the LGBTQ community in the US

  • The main issues for consideration before the court

  • The reasoning applied by the court in giving this decision

  • The relevance of dissenting opinions

Photo credit: tedeytan (licensed under CC BY-SA 2.0)


Introduction


On 15th June 2020, the top US Court in Bostock v. Clayton County prohibited workplace bias against the Lesbian, Gay, Bisexual, and Transgender (LGBTQ) community and ruled that employers who fire workers because of their gender or sexuality are violating the country's civil rights laws [1]. The 6-3 decision decided that Title VII of the Civil Rights Act, 1964, that prohibits discrimination based on sex should be interpreted to include sexual orientation and gender identity. This decision is the biggest victory for the LGBTQ community after the 2015 ruling in Obergefell, which legalised same-sex marriage [2]. The verdict comes on the heels of the numerous anti-LGBTQ policies of the Trump administration including attacking the LGBTQ non-discrimination provisions of the Affordable Care, Act [3] and banning transgender citizens from serving in the military [4]. This, coupled with the fact that around 8.1 million LGBTQ workers will benefit from the outcome of this ruling, make it especially noteworthy [5].


Issues at hand


Title VII decrees that all employment discrimination on the basis of race, colour, religion, sex and national origin is unlawful. The legal tussle in this case focused on the definition of 'sex' in Title VII.


In the case at hand, the plaintiffs, Aimee Stephens, Donald Zarda and Gerald Bostock contended that sex was intrinsically connected to an individuals homosexual or transgender status. Accordingly, firing any person because of such status would amount to discrimination on the basis of sex. The defendants did not deny that they had actively discriminated on the basis of the homosexual or transgender status of a person. Rather, their defence was that such discrimination, even intentionally, does not fall under the ambit of Title VII. They further argued that prohibition of such employment discrimination would require a specific mention and that lack of the same, points to the fact that congress had no such intention.


Court’s Reasoning


Voting in the plaintiff’s favour, the court applied the following reasoning:


"In other recent landmark cases involving the rights of LGBTQ individuals, the court chose to take a constitutional law approach. For instance, in Obergefell v. Hodges, the court embraced a vision of a living constitution, one that evolves with the changes in society. However, in the present case, it veered away from this when it chose to apply the textualist school of statutory interpretation rather than limiting itself to the drafter’s intention. It stated that the importance of Title VII as a civil rights protection coupled with the starkly broad terms of the law, enabled a variety of unexpected applications of the same. Moreover, the said broad rule lacked any exceptions. Thus, this enabled the court to make a broad interpretation of the rule in question and include homosexual or transgender status within the term 'sex'."


The court commented that the law was drafted keeping in mind discrimination against individuals rather than groups. This gave rise to the but-for cause test, which is commonly used in both criminal law and tort law to determine actual causation. The test asks, “but for the existence of X, would Y have occurred?” [6] When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision [7]. So, in this case to constitute discrimination on the basis of sex, sex need only be at least one of several causes of discrimination rather than the main or only cause. Here, though the employers main aim was to discriminate on the basis of homosexual or transgender status, to achieve this, they would inescapably have to treat a person differently due to their sex. Hence, sex being a but-for cause here, it is said that discrimination based on homosexual or transgender status amounts to discrimination on the basis of sex.

Gorsuch’s statement explains the reasoning behind this principle. He stated that "homosexuality and transgender status are inextricably bound up with sex. When trying to explain what the homosexual and transgender mean, one cannot do it, without using the words, man, woman, or sex. It can’t be done."


This is not the first time that the court has interpreted Title VII broadly. In fact, customarily the court has read Title VII to cover circumstances that were clearly not on the minds of the original law makers. In 1993, the definition of a discriminatory “abusive work environment” under Title VII, was interpreted by the court widely, to include sex and was not only limited to ‘economic’ or ‘tangible’ discrimination [8]. Even in 1998, Scalia read Title VII to enlarge the ambit of sexual harassment to cover cases when both the culprit and victim are of the same sex [9].


Conclusion


Though much emphasis has been laid on the impact of this judgement, the undertones of the dissent cannot be disregarded. Two separate dissenting opinions were authored; Justice Alito (with Justice Thomas) and Justice Kavanaugh. Alito opined that the majority’s decision is a "pirate ship", in that "It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated – the theory that courts should "update" old statutes so that they better reflect the current values of society." Kavanaugh contended that the “courts must follow ordinary meaning, not literal meaning”, arguing that the ordinary meaning of “because of sex” in the Title VII, does not include discrimination based on sexual orientation. Both concurred on the fact that the decision of the majority was tantamount to legislation and compromised the doctrine of separation of powers.


The majority anchored its opinion in the realm of today and refused to ignore the law’s demand by limiting their reach to the drafter's intention. It is pertinent to note that, when Congress enacted this Civil Rights Legislation in 1964, homosexuality was considered to be a “psychiatric disorder” and the recognition of transgenders rights was virtually non existent [10]. But now for the the third time since the landmark judgment in Lawrence, and then in Obergefell, Bostock represents a grand triumph for a community that was once completely disenfranchised from any legal consideration [11].


Authors

  • Esha Joshi is a 2nd year B.A.LL.B.(Hons.) student at National Law University, Nagpur.

  • Ruchir Joshi is a 3rd year B.A.LL.B.(Hons.) student at National Law University, Nagpur.

References


1. Gerald Lynn Bostock v. Clayton County, Georgia. (2020) 590 U. S. Altitude Express, Inc. v. Melissa ZardaII, (2020) 590 U.S. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, (2020) 590 U. S.


2. Obergefell v. Hodges, (2015) 576 U.S. 644.


3. Ariana Eunjung Cha, Trump administration removes non-discrimination protections for transgender people in health care, Washington Post (June 13, 2020),

https://www.washingtonpost.com/health/2020/06/12/trump-transgender-protections/.


4. Hallie Jackson, Courtney Kube, Trump's controversial transgender military policy goes into effect, NBC News (April 12, 2019), https://www.nbcnews.com/feature/nbc-out/trump-s-controversial-transgender-military-policy-goes-effect-n993826.


5. US Supreme Court endorses gay, transgender, worker protections, AlJazeera (June 15, 2020), https://www.aljazeera.com/news/2020/06/200615143917822.html.


6. But-for test, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/but-for_test.


7. Univ. of TX. SW Med. Ctr. v. Nassar, (2013) 570 U.S. 338, at 350.


8. Excerpts From Supreme Court Ruling on Sexual Harassment in Workplace, The New York Times (Nov. 10, 1993), https://www.nytimes.com/1993/11/10/us/excerpts-from-supreme-court-ruling-on-sexual-harassment-in-workplace.html.


9. Supreme Court Rules on "Same Sex" Harassment, Find Law (March 26, 2008), https://corporate.findlaw.com/human-resources/supreme-court-rules-on-same-sex-harassment.html.


10. Michael Bobelian, Latest Supreme Court Ruling Marks Another Landmark Victory For LGBTQ Rights Despite Conservative Control Of The Judicial Body, Forbes ( June 16, 2020), https://www.forbes.com/sites/michaelbobelian/2020/06/16/latest-supreme-court-ruling-marks-another-landmark-victory-for-lgbtq-rights-despite-conservative-control-of-the-judicial-body/#3d4e10f92069.


11. Lawrence v. Texas, (2003) 539 U.S. 558.