Gorsuch and Dissenting Opinions in Bostock

Discrimination

Facts

In Bostock v. Clayton County, the U.S. Supreme Court considered whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation or gender identity. The case originated in a lawsuit by Bostock, who claimed that he was unlawfully fired from his job in Georgia after promoting a gay softball club. At the time, Georgia had no law protecting workers’ right based on sexual orientation. Bostock claimed his Title VII rights under the Civil Rights Act were violated by his company, which did not approve of his sexual orientation. The District Court of Georgia ruled against Bostock by ruling that Title VII did not protect against discrimination based on sexual orientation but only against discrimination based on sex.[footnoteRef:2] Bostock appealed the case, which eventually ended at the Supreme Court. Gorsuch wrote the majority opinion ruling in favor of Bostock, saying that Title VII did indeed protect against discrimination based on sexual orientation. [2: Court of Appeals, https://media.ca11.uscourts.gov/opinions/unpub/files/201713801.pdf]

Decision

The court ultimately ruled that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination, and therefore covered by Title VII. The ruling was a major victory for LGBTQ+ rights, and helped to ensure that employees would be protected from discrimination regardless of their sexual orientation or gender identity. However, the ruling also left some unanswered questions, such as whether Title VII protects against discrimination based on transgender status. Nevertheless, the ruling was a landmark moment for LGBTQ+ equality, and helped to ensure that all employees would be treated fairly under the law.

However, Alito, Thomas and Kavanaugh produced dissenting opinions, arguing that the decision amounted to legislation and was an abuse of the notion of separation of powers. The decision to read “sexual orientation” into Title VII of the Civil Rights Act was not lawful in their eyes and could not be reconciled with the legislation passed in 1964. In order for Bostock’s case to have merit, legislators would have to draft new legislation protecting his right against discrimination based on sexual orientation. That had not been done and could not be seen as evident in Title VII. Thus went the argument of the dissenting justices.[footnoteRef:3] [3: Josh Gerstein and Rebecca Rainey, “With LGBT Ruling, Supreme Court Hands Liberals a Surprise Victory,” https://www.politico.com/news/2020/06/15/supreme-court-lgbt-rights-decision-319693]

The dissenting justices do have a point in their view, although Gorsuch was praised by some as adopting a textualist approach.[footnoteRef:4] The textualist approach to judicial law holds that the best way to interpret a legal text is to look at the plain meaning of the words used. This approach is based on the belief that the drafters of a legal text will have chosen their words carefully and that, as a result, the meaning of the text should be clear. This approach is often contrasted with the purposivist approach, which holds that a legal text should be interpreted in light of the purpose or intention of its drafters. Textualists also tend to reject the use of extrinsic evidence, such as legislative history, when interpreting a legal text. Instead, they believe that the meaning of a text can and should be determined without reference to any external sources. Proponents of the textualist approach maintain that it is more objective than other approaches and that it leads to greater certainty in the law. The fact of the matter is, however, that Alito, Thomas and Kavanaugh were much more the textualists, and Gorsuch was acting rather in the purposivist approach. [4: Josh Blackman, Justice Gorsuch’s Legal Philosophy, https://www.theatlantic.com/ideas/archive/2020/07/justice-gorsuch-textualism/614461/]

In his decision, Gorsuch focused on how the Court could base the interpretation of “sex” in Title VII on precedent set by other cases. His argument was that “sex” could be seen to include any discrimination involving all aspects of sex, including orientation. Yet, as Blackman points out, “In Bostock, Justice Gorsuch quietly accepted precedent that paid little attention to text.”[footnoteRef:5] In other words, those cases were not focused on the text itself—which as Alito et al. noted had no such view on orientation. Gorsuch was looking more at modern readings of discrimination and acceptance of homosexuality from a contemporary standpoint than he was at the text of the legislation. That is why Alito et al. argued that the majority opinion of the Court was an abuse of power. It essentially affirmed a new law (protection of rights based on sexual orientation)—one that had not existed prior. [5: Josh Blackman, Justice Gorsuch’s Legal Philosophy, https://www.theatlantic.com/ideas/archive/2020/07/justice-gorsuch-textualism/614461/]

In my view, it seems that the dissenting justices have the correct view on this matter. While it might be nice to believe that Title VII protects from discrimination based on sexual orientation the fact is that it does not. Sex referred to sex—not orientation. Gorsuch was reading more into the text than actually is there, and that represents a dangerous precedent and overreach on the part of the Court. It is an abuse of power to see more in the law than what is actually there. It is not the Court’s job to update the law by interpreting it more loosely. It is the legislature’s job to update the law. That is what Alito et al. meant in their dissenting view.

Solution

While this is an important case in the HR management field, as it indicates that HR may not discriminate against workers based on sexual orientation, it is also important to consider other possible solutions to the case. Bostock’s employer, for instance, might have saved itself a lot of trouble if it had instead of firing Bostock simply asked him to stop promoting the gay softball club at work.

There is also the other argument an employer should be more welcoming and inclusive towards gay employees. For instance, this side would argue that if an employer finds out that one of its employees is gay, there are a few things it should do in order to create a supportive and inclusive workplace. First, the employer should ensure that the employee feels comfortable coming out to them and that their confidentiality will be respected. The employer should also make sure that the rest of the staff are aware of the employee's sexual orientation and that they are comfortable with it. Furthermore, the employer should provide training on LGBT+ inclusion and how to avoid discrimination against queer employees. By taking these steps, the employer can create a workplace where everyone feels welcome and respected.

Yet what happens if not all employees, staff or management are comfortable with homosexuality? What if some of them do not accept based on religious beliefs? Would not forcing them to be welcoming and accepting go against their own voice of conscience? This is yet another problem that HR might need to think about. In welcoming one group, one risks causing conflict with another. The reality of life is that not all people agree on basic morals, fundamental principles, or even something as seemingly settled as sex and sexual orientation.

What could could HR do to make the workplace welcoming for both homosexual employees and religious employees who do not condone homosexuality? One idea would be to create a task force or working group that includes representatives from both groups, which could meet regularly to discuss issues and concerns and identify possible solutions. This was not done in Bostock’s case. Instead, Bostock was fired for purposes stated to have something to do with work effort and an audit. He reasoned, however, that his termination was due to his promotion of a gay softball club at work. Had HR intervened on the matter more effectively, it might have found a way to bring the issue of homosexuality more into focus and helped the workplace to reach a place of understanding without anyone being terminated.

Another possibility would be to create an inclusive nondiscrimination policy that specifically mentions both sexual orientation and religion, and make sure that this policy is consistently enforced. This would be an approach in which HR essentially makes it mandatory for people to appreciate and respect all opinions, even when those opinions clash or conflict. For example, it could say that a person has a right to talk about sexual orientation even if it is non-traditional, but that a traditional values person could have the right to affirm his or her own beliefs on the matter as well. The problem with this approach is that in seeking to appease all sides there is potential for a clash at some point as no one is really appeased.

Additionally, HR could provide training for all employees on topics such as diversity, inclusion, and sensitivity to different cultures and beliefs. Many organizations have recognized the importance of diversity, inclusion, and sensitivity training for all employees. There are a variety of reasons why this type of training is important. First, it can help to create a more positive work environment. When employees feel that they are respected and their individual perspectives are valued, they are more likely to be productive and engaged in their work. Additionally, diversity, inclusion, and sensitivity training can help to prevent workplace conflict. By promoting an understanding of different perspectives and cultures, employees are more likely to respect and appreciate one another. Finally, this type of training can also help to build trust between employees and management. When employees feel that they are being treated fairly and with respect, they are more likely to trust those in positions of authority. In sum, there are many reasons why diversity, inclusion, and sensitivity training is important for all employees.