Senior Editor – NLJ Board
A Win for LGBT Rights at the Workplace
Since 2019, efforts have been underway in the United States to pass the Equality Act, which would extend much needed federal law protections under the 1964 Civil Rights Act to the LGBT community. The Bill, now pending consideration by a Republican-dominated Senate, explicitly prohibits discrimination on the grounds of sexual orientation and gender identity in employment, public housing, education, public spaces, federally funded programs, and other areas. On 15 June 2020, the Supreme Court of the United States held in a 6-3 decision that “an employer who fires an individual merely for being gay or transgender defies the law.” This decision comes as an enormous surprise to millions of LGBT persons who have for years been suffering from ill-treatment and harassment at the hands of employers and co-workers alike. This post seeks to analyse the key findings of this ruling and its significance in the context of LGBT employment discrimination and American equality jurisprudence.
The case of Bostock v. Clayton County was brought before the Court by three long-term employees – two gay men, and one transwoman. They had been fired by their respective employers upon revealing to them their homosexuality or transgender status. The crux of the judgment surrounded the interpretation of Title VII of the Civil Rights Act of, 1964 which expressly bars employers from discriminating against employees based on or “because of” one’s race, colour, national origin, sex, and religion. At present, several states do not have anti-discrimination legislation that protects LGBT rights. Further, some states recognise discrimination based on sexual orientation but exclude discrimination on the grounds of gender identity. By interpreting Title VII to include both these categories, the Supreme Court has opened the way for individuals who have suffered such workplace discrimination in the past, to file lawsuits and seek compensation in their respective states.
A (Con)textual Reading of Title VII
Rather than attempting to engage with the legislative intent behind such a provision, or delineate the historical and contemporary progression of the LGBT movement, Justice Neil Gorsuch, writing for the majority adopted a strict textualist approach. While the result of such an approach itself is seemingly progressive, its application is restricted to a single question of law.
First, the majority observed that Congress, while framing Title VII, used broad language and deliberately chose not to carve out any exceptions to the grounds laid down therein. Hence, they held that it was only reasonable for the Court to follow this broad rule by merely interpreting the meaning of Title VII, “as written” in the statute. However, the employers argued that it was far-fetched to assume that the framers had contemplated LGBT issues within its scope while drafting such a provision. In response, the Court relied on Sedima, S. P. R. L. v. Imrex Co., a previous decision of the Supreme Court in which it had opined that simply because “a statute has been applied in situations not expressly anticipated by Congress” does not mean ambiguity, but “demonstrates the breadth of a legislative command.” In sum, the Court acknowledged the importance of contextual interpretations of the law with changing times.
Second, the majority compared the role of the legislature and the judiciary. It distinguished between judicial overreach and the exercise wherein judges opt for expansive interpretations to prevent “diminishing” the value of a statute. This distinction came mostly in response to the dissenting opinions of Justices Brett Kavanaugh and Samuel Alito. According to them, discrimination “based on” sex “does not cover discrimination on sexual orientation or gender identity.” Although they emphatically acknowledged the inferior treatment meted out to LGBTQ persons, they disapproved of the majority’s line of adjudication, warning that judges must not “rewrite laws based on their own policy views”, or “based on their own assessments of likely future legislative action.” Doing so, according to Justice Kavanaugh would lead to “a collapse of the doctrine of separation of powers”, which requires the legislature and judiciary to operate within their distinct domains, without encroaching upon each other’s powers.
The dissent also argued that it is the statute’s “ordinary meaning”, as opposed to its “literal meaning”, that must be followed. However, the majority chose not to dwell on subtle linguistic distinctions, as the dissenting judges had offered no alternative meaning that could be identified from the statute’s language. While Justice Gorsuch agreed that as judges, they did not possess any “special expertise or authority” to declare the law to the people, he noted that they did have a duty to “apply the law’s demands as faithfully” as they could in the cases that came before them. This meant giving way to new and unexpected applications of the law, instead of declining to enforce it or referring it back to Congress.
Third, the Court clarified that an employee’s sexual orientation or gender identity had no bearing on employment-related decisions. Therefore, while deciding whether an individual had been wrongly fired “because of” sex, it was crucial to determine what constituted the meaning of “sex”. For this, the majority thought it necessary to use a “but-for cause” analysis. A but-for cause is a cause or reason without which a particular consequence cannot follow. The Court observed that two but-for causes may sometimes come together to “yield a result that could have occurred in some other way.” Let us look at the Court’s own example of a nice day outside when a person’s house is too warm inside. As a result, if the person chooses to open the window, two but-for causes that could have resulted in such a decision are the cool temperature outside or the warm temperature inside. Irrespective of which of the causes actually influenced such a decision, the outcome did not change.
In the case of heterosexual employees, “male sex and attraction to men” are both but-for causes that can be used together to have them fired. According to the majority, it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual because of sex”, as the two are inextricably bound. Therefore, by applying such an analysis, the extent to which such a cause influenced the decision to fire an employee becomes irrelevant, so long as it is (no matter how slight) “because of” sex. As an example, the Court cited the instance of an employer firing a male employee because he was attracted to men. This meant that the employer discriminated against him for traits or actions it tolerates in his female colleague. Hence, any such discrimination would trigger the application of Title VII protections.
A Long Road Ahead
The Court in Bostock, in so far as it identifies forms of discrimination that go beyond grounds more explicitly and conventionally connected to “sex”, such as questions of motherhood or a woman’s life expectancy, is commendable. However, it limits its interpretation to Title VII alone and to forms of discrimination that are necessarily and directly a part of one or more statutory grounds. In the process, the Court leaves out subtler, unintended or inadvertent manifestations of discrimination that may unfairly prejudice the rights of LGBT persons.
The majority also leaves connected legal issues emerging from the judgment to future courts, including questions pertaining to sex-segregated bathrooms and dress codes which may qualify as unlawful discrimination. Another controversy that the Court left open was “ministerial exemptions” under the Religious Freedom Restoration Act of 1993, which allows religious groups to discriminate against employees based on sexual orientation or gender identities, irrespective of federal law protections. This has also been upheld by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, and is pending for hearing in Fulton v. City of Philadelphia, Pennsylvania.
Interestingly, the Indian Supreme Court in recent cases such as NALSA v. Union of India and Navtej Singh Johar and Ors. v. Union of India, has taken a more progressive stance by preferring an “intersectional understanding of how discrimination operates” rather than “formalistic interpretations” of Articles 15(2) and 16(2) of the Indian Constitution. Despite not having an anti-discrimination statute, Indian equality jurisprudence has already recognised both direct and indirect forms of discrimination on one or more grounds combined, such as discriminatory effects of a statutory provision resulting from existing structural inequalities between communities and classes.
In conclusion, the Supreme Court’s ruling in Bostock will certainly help create much needed momentum for the LGBT movement in the United States. At its heart lies the idea that a person’s sexual orientation and gender identity are core elements of individual liberty. However, the Court’s reluctance to expand its own jurisprudence means that the honest ramifications of such a ruling on specific protections for LGBT persons in the United States remain in limbo.