The word “landmark” does not begin to cover the impact that the Supreme Court’s decision in Bostock v. Clayton County (June 15, 2020) will have on employment discrimination.
In a 6-3 decision, the Court held that Title VII’s prohibition against discrimination “because of sex” will include discrimination on the basis of sexual orientation and sexual identity. While it may be surprising for some to see this decision be written by the proudly conservative Justice Gorsuch, joined by Chief Justice Roberts, it adheres to Gorsuch’s professed belief in looking at the language of the statute. Despite the raging culture wars that have questioned whether there should be a law against sexual orientation discrimination, the conservative Justice had a profound conclusion:
“The statute’s message for our cases is equally simple and momentous: 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.”
The majority opinion by Judge Gorsuch relied on a simple reading of the statute, rejecting efforts to qualify that simple task by asking what the original authors intended. The Court bitingly noted that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” The two dissents by both Alito and Cavanaugh claimed that the decision flew in the face of the late Justice Scalia’s belief in “textualism,” but Gorsuch remained firm, declaring, “Only the written word is the law, and all persons are entitled to its benefit.”
Thankfully, both New York State and New York City have long guarded against sexual orientation and sexual identity discrimination for many years. In fact, the City Law was written to ensure that its breadth could not be questioned. But for many parts of this country, including 25 states, there are no protections whatsoever for the LGBTQ community. Bostock will now begin to ensure that all Americans are afforded the basic human right to be who they are meant to be.