SCOTUS Today: Court Rules That Title VII Protects LGBTQ Workers; Also Issues Decisions in Capital Murder and Pipeline Matters

This was a significant day for the Supreme Court. The Court started with the release of the opinion written by Justice Gorsuch in Bostock v. Clayton County, which holds that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964 (“Title VII”). The opinions run 172 pages and ended up bogging down the Supreme Court’s website for a while.

L&E lawyers should take particular note of the Bostock decision. The essence of the case is encapsulated in the following quotation: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.” The Chief Justice joined the Gorsuch opinion as did all of the liberals. Justices Thomas, Alito, and Kavanaugh dissented.

The Court has decided all three pending Title VII cases in one consolidated opinion: Bostock comes from the Eleventh Circuit and is decided together with two other cases argued the same day: Altitude Express, Inc., et al. v. Zarda et al., from the Second Circuit, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission from the Sixth Circuit. In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And 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.” Each of them sued alleging violations of Title VII. The Eleventh Circuit held against Mr. Bostock, while the Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to be litigated. Here, a substantial majority of the Supreme Court has held that that an employer who fires an individual merely for being gay or transgender violates Title VII, which makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).

The conclusion of the Kavanaugh dissent—based entirely upon statutory language and meaning (a view that one might have thought other conservatives like Gorsuch would agree with)—is not uninteresting: 

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgment.

Kavanaugh won’t be praised, but his political analysis will be wildly duplicated, though he’ll get no credit. 

I note that one particular aspect of the majority opinion struck me as significant because all six of its adherents rejected any assertion that the common meaning of “sex” as “just gender” might be consistent with the legislative history. This is a conservative “bone” thrown by the liberals. Let’s see if they continue to reject reliance on legislative history in future cases. In any event, the following quotation is telling here:

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. See post, at 9–12 (Alito, J., dissenting); post, at 12–13 (Kavanaugh, J., dissenting). But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.

This is categorical adoption of the rationale advanced by LGBTQ advocates in a myriad of trial and appellate cases and represents a categorical victory. Justice Kagan drew this out during oral argument, and it is clear that a strong majority of the Court agrees.

But wait . . . the Court wasn’t finished for the day and decided to release two more decisions: In Andrus v. Texas, the Court, per curiam, held that a capital murder defendant, whose counsel failed even to investigate or consider, let alone present, substantial mitigating evidence, satisfied the standard of Strickland v. Washington, 466 U. S. 668 (1984), to demonstrate ineffective assistance of counsel. The Court then remanded the case for a consideration of the element of prejudice. Justices Alito, Gorsuch, and Thomas dissented. So, again, I believe that you find the Chief Justice and Justice Kagan controlling the middle and this time, brought Justice Kavanaugh along with them. Note the interesting fact that Justices Gorsuch and Kavanaugh were on opposite sides of both this case and Bostock.

In United States Forest Service v. Cowpasture River Preservation Association, Justice Thomas, writing for all, except Justices Sotomayor and Kagan, held that because the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System, the Forest Service had the authority to issue a special use permit allowing construction of a natural gas pipeline between West Virginia and North Carolina.

There are, I believe, 11 opinions yet to be issued, and it is very likely that there will be more action on Thursday, whence I shall return. 

By attorney Stuart Gerson of Epstein Becker Green, former Acting Attorney General of the United States and Assistant Attorney General for the Civil Division of the Department of Justice: https://www.ebglaw.com/stuart-m-gerson/

This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.