Bostock v. Clayton County

Notable Items:

The following are immaterial:

• First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. [labeling immaterial]
• Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action.
• [Third] Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. [individuals, not groups]

Rule of Statutory Interpretation:
Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.

First Amendment Issues:
Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions.
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.

Two of the three cases concern conduct...firings for conduct that would have been ignored if done by a woman.

"but-for" occurs twenty-three times in Gorsuch and does not appear in either Alito or Kavanaugh.

Roberts may have joined solely to determine that Gorsuch would write the opinion in place of Ginsburg, Breyer, Sotomayor, or Kagan. Furthermore, a poorly-crafted opinion would be easier to disregard as precedent or to overturn in the future.

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. [conduct]
• Altitude Express fired Donald Zarda days after he mentioned being gay. [speech]
• R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” [conduct]
• Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1)

Procedural History:

• Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1)
• The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
• The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law.

Gorsuch Rationale (Roberts, Ginsburg, Breyer, Sotomayor, Kagan)

Majority Opinion (33 pages)

• [In the] Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.
• So, taken together, an employer who 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--discriminates against that person in violation of Title VII.
• In the language of law, this means that Title VII’s “because of ” test incorporates the “ ‘simple’ ” and “traditional” standard of but-for causation. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 346, 360 and same 338, 350 (citing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009); quotation altered). [emphasis added]
• In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
• The lessons these cases hold for ours are by now familiar.
• First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.
• Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action.
• [Third] Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.
• When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. [Major Questions Doctrine Biden v. Nebraska]
• That is exactly the sort of reasoning this Court has long rejected.
• Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law
• A full description of the rationale is available below

Alito Dissent (Thomas) (54 pages not including appendicies)

Kavanaugh Dissent (none) (28 pages not including appendicies)

• Will Kavanaugh confront the "but-for" understood as substitution for female/male in place of male/female to ascertain discrimination in Gorsuch's majority opinion?
• The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation.
• Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.
• Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law.
• As written, Title VII does not prohibit employment discrimination because of sexual orientation.
• [Part I -- Distinguishing Sexual Orientation Discrimination and Sex Discrimination]
• Title VII makes it unlawful for employers to discriminate because of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).2 As enacted in 1964, Title VII did not prohibit other forms of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination.
• [Age discrimination: 1967 Age Discrimination in Employment Act]
• [Disability discrimination: 1973 Rehabilitation Act; 1990 Americans with Disabilities Act]
• In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views.
• But in the last few years, a new theory has emerged. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex.
• For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. [emphasis added]
• But to prevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the [OR that the] ordinary meaning of “discriminate because of sex”--not just the literal meaning--encompasses sexual orientation discrimination. The plaintiffs fall short on both counts. [emphasis added]
• First, courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
• Next is a critical point of emphasis in this case. The difference between literal and ordinary meaning becomes especially important when--as in this case--judges consider phrases in statutes. Courts must heed the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase.
• Second, in light of the bedrock principle that we must adhere to the ordinary meaning of a phrase, the question in this case boils down to the ordinary meaning of the phrase “discriminate because of sex.” Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The answer is plainly no.
• As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.
• Instead, Congress has consistently treated sex discrimination and sexual orientation discrimination as legally distinct categories of discrimination. [Example from footnote 5] (18 U. S. C. §249(a)(2)(A) (criminalizing violence because of “gen- der, sexual orientation”);)
• In short, an extensive body of federal law both reflects and reinforces the widespread understanding that sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
• [enumeration of various federal statutes, presidential executive orders, federal regulations, state laws, state executive orders and prior supreme court decisions distinguishing between sexual orientation discrimination and gender discrimination]
• All of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore received the same heightened scrutiny as sex discrimination under the Equal Protection Clause.
• [Part II]
• [reiteration of various points from Part I]
• [Conclusion]
• But the Constitution does not put the Legislative Branch in the “position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976) [Unless its Section Five of the Voting Rights Act ShelbyCounty-Holder (2013) "There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago." Irrespective of the text and intent of the 2006 Act; or OR race based affirmative action "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Need entry for Grutter-Bollinger and SFFA v. Harvard/North Carolina]

Majority Full Argument

• [In the] Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.
• An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.
• Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
• [Part I -- Background ]
• See Material Facts
• See Procedural History
• [Part II -- Basis for Statutory Interpretation]
• This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.
• We must determine the ordinary public meaning of Title VII’s command that it is “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.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.
• [Part II A -- Textual Interpretation]
• The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute.
• ... we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.
• In the language of law, this means that Title VII’s “because of ” test incorporates the “ ‘simple’ ” and “traditional” standard of but-for causation. [emphasis added]
• In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
• 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.
• [review of other statutory language "solely" and "primarily because of"]
• By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination.
• To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated.
• In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional.
• So, taken together, an employer who 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--discrimi- nates against that person in violation of Title VII.
• Employers may not “fail or refuse to hire or ... discharge any individual, or otherwise ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” §2000e–2(a)(1) (emphasis added).
• [Part II B -- Application of the Text of the Statute]
• If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee--put differently, if changing the employee’s sex would have yielded a different choice by the employer--a statutory violation has occurred.
• An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
• Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision.
• When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play--both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But 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.
• To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex. [emphasis added]
• [Part II C -- Leading Precedents]
• Consider three of our leading precedents.
• In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), a company allegedly refused to hire women with young children, but did hire men with children the same age. The company maintained, too, that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men.
• In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), an employer required women to make larger pension fund contributions than men. ... the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals.
• In Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court held it was immaterial that members of the same sex as the victim committed the alleged discrimination.
• The lessons these cases hold for ours are by now familiar.
• First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.
• Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action.
• [Third] Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.
• [Part III -- Error in Employers Claims]
• ... the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII.
• The employers’ argument proceeds in two stages. [emphasis added]
• [Part III A -- Textual]
• [First Argument] ... the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. According to the employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex.
• But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause.
• Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires.
• But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.
• Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination?
• No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. [race and religion analogous examples provided]
• [Second Argument] Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. [emphasis added]
• We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.
• Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.
• The employers try the same point another way. Since 1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII’s list of protected characteristics, but no such amendment has become law.
• All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt. Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990); see also United States v. Wells, 519 U. S. 482, 496 (1997); Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, concurring) (“Arguments based on subsequent legislative history ... should not be taken seriously, not even in a footnote”)
• [Third Argument] Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it just doesn’t work when it comes to cases involving homosexual and transgender employees. ... because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred.
• Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; ....
• Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision.
• ... the employers’ policies in the cases before us have the same adverse consequences for men and women. How could sex be necessary to the result if a member of the opposite sex might face the same outcome from the same policy?
• Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role.
• At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow.
• [Part III B -- Appeal to Policy Preferences]
• Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy.
• Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. [Intent Originalism]
• This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end.
• ... some Members of this Court have consulted legislative history when interpreting ambiguous statutory language. “Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Department of Navy, 562 U. S. 562, 574 (2011).
• Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for a different purpose: Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context.
• [The employers] do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms, whether viewed individually or as a whole, ordinarily carried some message we have missed.
• Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. [Intent Originalism]
• When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. [Major Questions Doctrine Biden v. Nebraska]
• That is exactly the sort of reasoning this Court has long rejected.
• One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group.
• The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no-elephants-in-mouseholes canon. That canon recognizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001).
• We can’t deny that today’s holding ... is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them.
• ... the employers are left to abandon their concern for expected applications and fall back to the last line of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. ... all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. [emphasis added]
• Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.
• So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
• Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law
• The core of the rationale is available above