One of our national shames has finally been put to bed. In a June 15, 2020, 6-3 decision, the U.S. Supreme Court held that Title VII’s prohibition against workplace discrimination because of sex includes discrimination based on sexual orientation and gender identity. The case is Bostock v. Clayton County, and it’s a decision for the history books.

This decision is welcome and needed news. And few saw it coming. Supreme Court observers largely predicted that the Court’s conservative majority would side with employers and find that companies were free to discriminate against employees on the basis of their LGBTQ status. But Chief Justice John Roberts and Justice Neil Gorsuch stunned the world and sided with the workers. In fact, Justice Gorsuch penned the opinion, and his holding is clear—“An employer who fires an individual merely for being gay or transgender defies the law.”

To get there, Justice Gorsuch took a textualist approach to Title VII of the Civil Rights Act of 1964. That is, he largely relied on the statutory language before him and applied the ordinary meaning of Title VII’s words without extensive legislative intent or other contextual examination. Textualism is complicated, but for purposes of this article, it is generally a conservative approach to legal interpretation, and Justice Gorsuch’s use of it here has serious consequences.

To better understand those consequences, it’s important to understand what the decision does not do. First and foremost, the Court did not add an LGBTQ category to Title VII. Instead, the Court analyzed Title VII’s already existing prohibition against workplace discrimination “because of” sex. As background, in 1964, Congress passed the Civil Rights Act, and Title VII of that Act bars workplace discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). In Bostock, the Court looked at the ordinary meaning of “because of” sex and found that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” It continued with an illustration:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.

Justice Gorsuch also noted that the Court has previously recognized that “because of” sex to include sexual harassment and pregnancy discrimination. It includes gender stereotype discrimination. Those forms of discrimination are no less “because of” sex than LGBTQ discrimination, and barring such claims would neither align with this history nor, more importantly, the ordinary meaning of “because of” sex.

Second, even with Justice Gorsuch’s textualist approach, Bostock does not subvert the will of Congress. In what may be the most stunning part of this decision, Justice Gorsuch outlined a view that our laws and government should be, and must be, empowered to protect marginalized people—assuming the opposite is wrong:

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. . . . But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.

In a country that holds itself out to the world as a beacon of justice and equality, assuming that the drafters of the Civil Rights Act necessarily sought to cast out a marginalized group is not only wrong; it’s un-American. Courts have long recognized the broad, prophylactic nature of the Civil Rights Act, including Title VII, and applying it to bar LGBTQ discrimination is in-line with this.

Finally, the decision did not open the floodgates and invite a rush of frivolous cases. The employment discrimination attorneys at Herrmann & Murphy have always interpreted “because of” sex as including LGBTQ discrimination, and have brought these cases for years. Though companies and management lawyers have long argued the opposite, such arguments increasingly felt immoral, illogical, and flat-out wrong. And throughout the country, many states had already enacted laws to prohibit LGBTQ discrimination. Bostock merely fills in the gap in states that were lagging behind, like North Carolina and South Carolina.

Even though Bostock was decided under the federal Civil Rights Act, it actually changes the relief available under North Carolina law, too. North Carolina’s Equal Employment Practices Act prohibits discrimination “on account of . . . sex” and recognizes that “denying employment opportunity and discriminating” is anathema to our state’s public policy. North Carolina courts have long looked to federal law to help interpret the terms of this Equal Employment Practices Act. Justice Gorsuch’s opinion makes clear that it is impossible to discriminate against gay or transgender employees without taking “account” of their sex. Thus, it is a new day for North Carolina law, too, in addition to Title VII of the federal Civil Rights Act.

Bostock is the most progressive Supreme Court employment law decision in decades, if not ever. On June 14, in this country, companies and their lawyers believed and argued that employers could fire workers simply because of their sexual orientations or gender identities. As Americans gets back to work, they will do so with new workplace protections. In the stormy sea that is 2020, a rainbow is a very welcome sight.


Kevin Murphy of Herrmann & Murphy

Kevin Murphy

Sean Herrmann of Herrmann & Murphy

Sean Herrmann

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