How to Discriminate and Get Away with It (Part II)
Let’s pick up the story of Bostock v. Clayton County with a look at the arguments made by each party. As a reminder, this is Part II of a two-part series. If you haven’t checked out Part I, you may find some or all of this confusing. Also, numbers clearly aren’t your strong suit.
The Arguments:
Alright, you’re probably thinking, Part I was sort of interesting, even if I did get weirdly accused of discriminating against Danish people, but why don’t we just look at Title VII and see if it prevents employers from firing people for their sexual orientation? If it does, Mr. Bostock wins. If it doesn’t, the County wins. If you’re thinking like that, congratulations, you’re thinking like a lawyer. The first place lawyers and judges usually go in any case is to the language of the applicable law, or statute. The goal is figure out what a law actually says and does, and to try to apply it to the facts of a particular case. This is called statutory interpretation.
Title VII:
“It shall be an unlawful employment practice for an employer -
(1) 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.”
The only problem here is that Title VII, like many federal statutes, is…less than clear about what it actually does. Check it out, it’s right there to the right. I’ll wait.
Returning to your second brilliant observation from earlier, you’ve probably already noticed that Title VII’s language doesn’t actually mention sexual orientation at all. That’s true. In fact, the explicit language of Title VII only makes it illegal for an employer to “discriminate” against an employee because of the employee’s “race, color, religion, sex, or national origin.” You, being the observant reader that you are, are probably thinking that leaves a bunch of different ways to legally discriminate against people. Hair color, height, weight, the list goes on. Title VII doesn’t really take much off the table.
No, it doesn’t. And even the things that it does protect against aren’t clearly defined. What, for example, constitutes a religion for Title VII purposes? Is it just the major world religions? Does pastafarianism count? What about the term “color?” What does that even mean? Ethnicity? Race? If you have questions like this, join the club. Courts have been struggling with these sorts of issues almost since the Civil Rights Act was passed.
But let’s look at what we do know. We have the broad strokes. It’s pretty clear that Title VII would prevent Clayton County from, for example, firing Mr. Bostock solely on the basis of his being African American, or being Christian. That much is settled law. But what about his sexual orientation?
Well, we’re actually lucky in this case, because here, the parties basically agree on the starting point: that Title VII does not explicitly prevent discrimination based on sexual orientation. That is, there’s no mention of sexual orientation in the statute, so if we were to read it in a vacuum, Mr. Bostock would lose.
That being the case, you can probably guess already what each party’s general arguments are going to be. On one hand, Mr. Bostock is going to try to convince the Court that Title VII should be read to prevent discrimination based on sexual orientation, even though that term isn’t mentioned in the statute. On the other, Clayton County is going to try to convince the Court that Title VII should be read narrowly so as not to include discrimination based on sexual orientation.
With all that out of the way, let’s begin with a look at the arguments offered by the petitioner, Mr. Bostock.
The Petitioner:
The gist of Mr. Bostock’s argument is this: no matter what Title VII literally says, what it does is prevent discrimination based on arbitrary classifications that don’t have anything to do with job performance. A person’s race, for example, has nothing to do with their job performance. Nor does their religion or their nationality or the color of their skin. (Note that there are certain categories of jobs where a person’s sex might be relevant to their job performance, but that’s a story for another day). Sexual orientation, Mr. Bostock would say, is a classification like this, even if it isn’t specifically mentioned in Title VII. Being heterosexual, homosexual, bisexual, etc. has no impact whatsoever on job performance. Thus, Title VII prevents discrimination based on sexual orientation. That’s the SparkNotes version. Feel free to leave it at that if you only want the general overview. You’re welcome.
For those of you overachievers, let’s look at how Mr. Bostock gets to that conclusion.
We’ll start with a general first principle: Title VII prevents discrimination based on sex. That much is obvious from the language of the statute. Mr. Bostock is going to spend a great deal of his argument trying to convince the Court that “sexual orientation” falls within the meaning of the term “sex” as used in Title VII.
Let’s take a deeper look at that, because it’s an interesting argument.
Mr. Bostock points out that it’s impossible to define sexual orientation without reference to sex. After all, a person who identifies as homosexual does so because they have a sexual preference to members of their own sex. So, in Mr. Bostock’s case, he only identifies as homosexual because he is a man who is sexually attracted to other men. Similarly, a lesbian is someone who identifies as a woman with a sexual preference for other women. You can’t define these sexual orientations without first identifying the biological sex of the participants. If this is true, then discriminating against someone because of their sexual orientation is also discriminating against them because of their sex. Think back to what we said about discrimination: it’s treating someone differently than you would treat other people. Mr. Bostock’s point here is that a female employee who prefers sleeping with men would not lose their job the way he did. Along similar lines, a male employee who prefers sleeping with women would also be safe. It’s only because he’s male and prefers sleeping with men that he was fired. And the County can only arrive at this conclusion by considering his sex, which Title VII broadly prevents. Under this analysis, sexual orientation discrimination is sex discrimination, and it’s covered by Title VII.
Put a pin in this argument, we’ll come back to it in a minute.
Mr. Bostock also makes reference to a concept called associational discrimination. This one comes from a very famous Supreme Court case called Loving v. Virginia (you may have seen the 2016 movie about the case, Loving, starring Ruth Negga and Joel Edgerton—see, the Supreme Court can be sexy), which held that it was unconstitutional to enforce laws that made interracial marriages illegal. Loving was decided based on the U.S. Constitution, not Title VII, but the idea in the case is that it’s unconstitutional to discriminate against people based on the race of the person they chose to marry. Mr. Bostock’s argument is that the same rationale could apply in his case. That is, if it’s illegal to discriminate against someone based on the race of the person they choose as a partner, shouldn’t it also be illegal to discriminate based on the sex of their chosen partner?
The last argument I want to talk about here is what I’ll call an “evolving standards” argument. This one is very common in Supreme Court cases. In essence, what an evolving standards argument does is ask the Court to look not at the plain language of a law, but at what the words actually mean in a particular social context.
If “Sex” as used in Title VII includes gender, and Mr. Bostock was discriminated against because of his gender, then Mr. Bostock was discriminated against because of his sex.
Let’s consider an example from this case. Here, Mr. Bostock takes aim at the word “sex” as used in Title VII. Most legal scholars and historians would probably agree that in 1964, this term simply described people who were biologically male or female. But Mr. Bostock’s position is that the word means something more now. It includes a whole range of cultural norms and expectations, and it’s more inclusive than just male or female. Really, what he’s saying is that “sex” in the context of Title VII also includes “gender.” What’s the difference, you ask? Well, without getting too graphic, sex refers to the genitals you were or were not born with, while gender refers to the social and cultural identity you inhabit. In 1964, most people would probably say these were the same thing—men were manly, tough, the breadwinners of the world, while women were more reserved and tended to be more domestic. And that was it. Those were traditionally the only sex/gender roles. Mr. Bostock’s argument is that the County discriminated against him because of these traditional gender roles, i.e. for not conforming to the stereotypical manly man role. If that’s true, and if “sex” in Title VII also includes “gender,” then he was discriminated against because of his sex.
And that’s a general summary of the most compelling arguments for Mr. Bostock. As always, if you’re interested in reading the briefs, check out the link in Part I. Otherwise, let’s move on to the arguments made by Clayton County.
The Respondent:
As before, I’ll give you the SparkNotes version of Clayton County’s argument, but you can probably see it coming already: Title VII doesn’t mention sexual orientation at all. As a result, it doesn’t prevent discrimination based on sexual orientation. End of story.
This argument illustrates a very common issue in statutory interpretation that we’re going to see over and over again. It’s the conflict between what is often called “textualism,” and what I’ll call “extra-textualism.” This issue comes up in almost every Supreme Court case that involves legal language (which is almost all of them), so it’s worth mentioning. In very broad terms, there are two sorts of judges. On one hand, there are “textualists.” Generally speaking, a textualist judge would almost certainly look at the facts of this case and say, “I don’t see any reference to sexual orientation in the text of Title VII, so Clayton County wins.” On the other hand, there are “extra-textualist” (this is a word I made up, not a technical term: use it at your own peril) judges. In this case, an extra-textualist judge might say, “I see that Title VII doesn’t mention sexual orientation, but it seems to me that the law was intended to prevent discrimination based on any classifications that society deems inappropriate. Since modern society deems discrimination based on sexual orientation inappropriate, Mr. Bostock wins.” If you want to read more about textualism vs. extra-textualism, click the links and check out the corresponding entries in the glossary.
Now, I’ll let you take a guess about which type of argument Clayton County makes in this case.
Go ahead.
I’ll wait.
Yes! That’s exactly right! It makes a textualist argument! Ten points to Slytherin! But it’s obvious to see why, isn’t it? The text of Title VII is the strongest piece of evidence in the County’s favor. The County points primarily to the general rule that when interpreting a law, the Court should read it for its “ordinary, contemporary, common meaning.” (We’ll refer to this as the plain meaning rule.) Citing dictionaries from 1964, the County notes that the term “sex,” in 1964, referred only to biological identity as male or female, and didn’t include notions of gender or sexual orientation. Sex and sexual orientation, the County argues, are not and have never been synonymous or interchangeable.
Is sex the same as gender? If not, how do the two differ?
Now, remember what Mr. Bostock said about sex being a necessary component of sexual orientation? Well, naturally, the County disagrees. The County argues that it didn’t discriminate against him on the basis of sex because it didn’t treat him differently than other employees based on his sex. Let’s go back to our definition of discrimination. We’re going to need it. Discrimination is treating people differently than you would treat others. So to discriminate on the basis of sex, you typically need to treat women differently from men or men differently from women (we’ll leave the question of non-biological sexes and genders for another day). The County’s position is basically this: if it wanted to fire people for being homosexual, it could easily do it while treating both sexes exactly the same. That is, it could fire all men who preferred having sex with other men and all women who preferred having sex with other women. If it did that, it wouldn’t be considering sex at all—both men and women would be treated the same way. This being the case, the County would say, discrimination based on sexual orientation can’t be the same as sex discrimination. Take a moment to think about this, and compare it to Mr. Bostock’s argument. Which do you find more compelling? Why?
There’s one other argument I want to talk about here, and it involves elephants and mouseholes. No, that isn’t sexual innuendo, grow up. What I’m referring to is a common proverb in statutory interpretation, which states that “Congress does not hide elephants in mouseholes.” Great visual, I know. What it means is that when Congress (or any legislature really) intends to make sweeping changes to the law of the land, it doesn’t normally hide what it’s doing. So, to use an example from this case, if Congress meant for Title VII to protect against discrimination based on sexual orientation, it would have just said so. It would have included those exact words in the statute somewhere. And if courts weren’t applying the law right, Congress would have stepped in and done something to correct it, it wouldn’t have waited 55 years for the Supreme Court to do it. Since Congress didn’t use those words in Title VII, and since Congress hasn’t done anything to address the issue in the 55 years since Title VII was passed, Congress can’t have meant to include sexual orientation within Title VII.
Ok, that’s it. Those are the main arguments in the case. My hope is that you’ll read them and give due consideration to both sides. Try to understand where each party is coming from, and remember that there are real people with real lives on both sides.
Take a moment to consider your own beliefs, and we’ll move on to some talking points.
Talking Points:
Ok, here’s the part where you get to wow your friends with some knowledge about Supreme Court case law and history. Here are your talking points:
1. The issue in this case is whether sexual orientation discrimination is illegal under Title VII, not whether discrimination is ok generally or whether it should be allowed. Don’t get distracted by the news media.
2. Discrimination means treating someone differently than you would generally treat other people.
3. A big issue in this case is the meaning of the term “sex.”
4. Does “sex” just mean biological sex, or does it include notions of gender?
5. Along similar lines, when we look at the word “sex,” should we use the definition that existed when Title VII was passed in 1964, or should we use a more modern definition?
6. A major dispute in this case is the dispute between textualism and extra-textualism.
7. Remember, both are valid theories. Textualism is generally favored for safeguarding the traditional separation of powers implicit in our government. But extra-textualism allows our laws to be flexible, and respond to an ever-evolving society.
8. Which do you prefer?
9. If you were a judge, would you apply the plain language of a law, or would you try to determine what the language meant, both when it was written and now? That is, are you a textualist or an extra-textualist?
10. Would you apply your chosen outlook all the time? Or would you pick and choose when to apply it?
11. The main problem in this case, as in most cases, is that Congress is not always clear or concise when it writes laws.
Why this Case Matters to YOU:
This is what you all came for, right? Some way to make sense of all the legal jargon you’ve heard. Some way to wade through the muddy bias of the news media. Well, you’ve come to the right place. Here, you’ll get a concise summary of why this case matters to you.
You’ve probably come up with some of this on your own already, but let’s talk about it.
First of all, if you identify as gay, lesbian, bisexual, or any other sexual orientation besides heterosexual, this case obviously matters. You probably wouldn’t like it much if your employer were allowed to fire you after they found out you were gay, lesbian, bisexual, etc.
However, even if you identify as heterosexual, this case matters. You probably also wouldn’t like it if your employer could fire you for no other reason than your sexuality. You might say, “Ok Mr. Blogger, but I’m not going to get fired for being straight.” To that I’d reply, “At the moment, you’re probably right. But Supreme Court precedents usually last a long, long time.”
This case should also matter to everyone, regardless of their sexual orientation, because it’s going to tell us a great deal about how committed the members of the Court are to their ideologies. At present, there are several Justices who adhere to a more textualist viewpoint. As a result, most Supreme Court forecasters predict a decision in favor of the County in this case. I’m not here to offer any sort of opinion on that, or on which side is right or wrong—that’s your job as readers and analytical thinkers—but it will be interesting to see this dynamic play out. And, as I mentioned, the issue of textualism vs. extra-textualism comes up in a large majority of Supreme Court cases, so the holding here will be another important barometer of the Court’s collective opinions.
Finally, as always, let’s conclude on a more human note. Remember that whatever you believe about this case or any of the issues, there are real human beings on both sides. On one side is a man who believes—whether he’s wrong or right—that he was fired because of something he can’t control. On the other side is an employer that believes it did nothing illegal and is simply trying to defend itself from some difficult accusations. These are real people with real beliefs. They aren’t the devil.
Consider their arguments. Judge their positions for yourself. Listen to them, if you can. And make your own decision.
That’s what this is all about.