On June 15, 2020, the United States Supreme Court in its landmark ruling extended the scope of the term “sex” mentioned under Title VII of the US Civil Rights Code of 1964 to include “sexual orientation” as well.
The majority judgement authored by Associate Justice Neil Gorsuch was affirmed by 5 other judges (Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, and Breyer), while Justices Alito, Kavanaugh, and Thomas dissented.
The question posed before the court was: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination "because of... sex" within the meaning of Title VII of the Civil Rights Act of 1964.
This article presents an analysis of the landmark ruling, highlights the important tools and constructions the court employed, and how the dissenting opinions held majority ruling as an act of judicial overreach.
The Court Finds the Law
The judgment begins with a disclaimer by Justice Gorsuch that the Court is supposed to find the law and will be not legislating in the course of its judgment. However, the approach of finding the law may seem novel, as the Court does not trace the legislative intent of Congress in 1964, instead stating that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
The three leading precedents on the application of the same law - Phillips v. Martin Marietta Corp, Los Angeles Dept of Water and Power v Manhart, and Oncale v Sundowner Offshore Services - pointing out three important observations, helped the Court in reaching its conclusion. These were:
Firstly, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it (see earlier judgments where discrimination was made on account of sex, based on motherhood or life expectancy)
Secondly, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. A but-for cause analysis pointing towards the rejection that shows that the individual’s sex was one of the reasons, even the minutest of the factors involved would do.
Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As title VII talks about employment rights of an individual, justifying any self-made classification by the concerned employer is not permitted by law.
The Court, premising its reasoning on the above observations, explained the requirement of but-for cause analysis while rejecting the motivating factor test in its entirety.
Logic and Statutory Interpretation as Important ‘Tools’
The Court, on the interpretation front, adopted the. but-for causation test for determination of the nature of Title VII and neglected the motivating factor test. It stated that “the question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of” sex, and the ordinary meaning of ‘because of’ being ‘by reason of’ or ‘on account of.”
In the language of law, this meant that Title VII’s “because of” test incorporates the “‘simple’” and “traditional” standard of but-for causation, which is established whenever a particular outcome would not have happened “but for” the purported cause, which was discrimination based on homosexuality in this case. In other words, a but-for test directs the court to change one thing at a time and see if the outcome changes. If it does, the court stated, we have found a but-for cause.
While the traditional but-for clause analysis of Title VII holds the employer liable when it intentionally fires an individual employee based in part on sex, it makes no difference if other factors besides the plaintiff’s sex contributed to the decision. As discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII. And hence, there is no escaping the role intent plays (motivating test).
Justice Gorsuch uses many logical examples to substantiate his point. In his words-
“Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open “because of” the outside temperature.”
This points towards the fact that two but-for factors combine to yield a result that could have also occurred in some other way. Hence, although both employer and employee think that the act of denying employment in any manner was based on sexual orientation/ inclination, it is indirectly linked to the “sex” of the individual."
Well-Reasoned Dissents?
The two dissents, authored by Justices Alito (joined by Justice Thomas) and Justice Kavanaugh, premised their reasoning on two major points. First, that there is a stark contrast between the meaning supplied to terms sex and sexual inclination and both cannot be equated. Second, the act of majority was nothing but a misguided approach of legislating from the bench, which goes against the fundamental constitutional principle of separation of powers and amounts to a brazen abuse of Supreme Court’s authority to interpret statutes.
On legislative intent, Justice Alito insisted that there was no legislative intent to allow for such a broad expansion in the meaning of term “sex” at the time of enactment in 1964, even in lieu of absence of an expressed provision to bar such interpretation.
The majority refuted this idea by boldly stating that,
“...because few in 1964 expected today’s result, we cannot refer the subject back to congress which would be nothing but our denial to enforce the plain terms of law when a new application of law emerges, that is both unexpected and important” (emphasis supplied)
A cleverer argument was put forward by Justice Kavanaugh on statutory interpretation. He pointed out that "courts, while interpreting statutes, generally follow a law’s ordinary meaning rather than its literal meaning". In his view, as the US Supreme Court had earlier refused a reading of “mineral deposits” that included water, even though water is literally a mineral; declined to hold that “personnel rules” encompass any rules that personnel must follow; and an aircraft is not a “vehicle”, ordinary meaning sometimes precludes the literal application of a statute’s terms. However, his arguments were rejected by the majority on the ground that howsoever compelling his reasoning was, he failed to offer a better alternative.
As the judgement shows a strong attachment of Justice Gorsuch and CJ Roberts (neither of whom ever before voted to support a gay rights claim) to their textualism, the utility of dissenting opinions cannot be denied completely.
Significance of the Judgement and Potential Implications
As this article points out, the judgment given by Justice Neil Gorsuch, who also happens to be the first nominee of President Trump to the US Supreme Court “is a watershed moment and a stunning defeat for judicial conservatives who worked to ensure Gorsuch's nomination and Republicans”.
Another very positive aspect of the judgment is its length. When Supreme Court of India is often criticised for its verbosity in its landmark rulings, Bostock’s majority opinion runs in 32 pages only, touching every aspect of the issue lucidly.
However, due to nationwide impact of the judgment on 7 million+ members of transgender community and the employers, the implementation of the new law will not be easy. This judgement also casts doubt over legality of the June 12 regulations by the Trump administration which permits health providers to discriminate against LGBT patients.
As Justice Samuel Alito warns in his dissenting opinion,
“the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.”
With briefings filed by many religious organizations, raising concern that the expansion of the meaning of the term in dispute may hamper organizations’ right of religious liberty (one of the amicus briefs can be accessed here), the judgement may appear controversial to many.
Concluding Thoughts
Although the judgment is very significant due to the nationwide impact it will have, it left many themes unexplored which include potential infringements of first-amendment rights of many organisations. The majority opinion itself states,
“First Amendment can bar the application of employment discrimination laws, considering the expressed statutory exceptions provided to organisations by the congress in the decades following the enactment of the statute in 1964”.
In all analysis, Bostock was a tough test, which affirmed that the textualist method can prevent the judges’ policy preferences from neglecting their knowledge of statutory interpretation.
The author is reading law at Dr. Ram Manohar Lohiya National Law University, Lucknow.
Full text of the judgement can be accessed here.