How to Discriminate and Get Away with It (Part I)

So you stuck around. You made it through the introduction and the glossary (or you’re a badass and you just skipped them both and went for the good stuff). You’re ready for some Supreme Court shenanigans.

Since this is the first review, let’s talk format. Here’s how it’s going to go:

First, I’m going to introduce you to the parties and what exactly it is that they’re arguing over. It goes without saying at this point, but I’m going to be impartial, which means no judgments about why people are doing what they are doing or why they believe what they believe. Everyone is entitled to an opinion and everyone is going to get a voice here. Our goal is to remember that no matter what we believe, there are real, genuine people on both sides of every issue. To these people, legal cases aren’t landmark rulings or sweeping policy changes, they’re decisions that literally determine their rights, their responsibilities, and even their futures.

Next, we’re going to dive in and look at the state of the law and how it applies to the facts of the case.

Then, I’m going to give you some talking points so you can wow your friends with pithy little tidbits about some legal issue they’ve never even heard of. You’re welcome in advance.

Finally, I’m going to tell you how this case impacts your life. Essentially, I’m going to try to convince you to care. As always, I’m not going to argue for any particular outcome. I’m going to present the issue as simply and impartially as I can and leave the rest to you.

Now, this is the first review, and there’s some very important background to cover, so we’re going to split this into two parts for ease of access. In Part I, I’m going to cover the parties, the issue, and all the legal background information you might need. In Part II, we’re going to discuss the arguments made by each of the parties, give you some talking points, and discuss the ways in which this case matters in your life. Both Parts should be going up simultaneously, so if you’re a voracious reader with too much time on your hands (I’m right there with you, incidentally), feel free to read them back to back.

So, without further ado (I promise), here we go:

Bostock v. Clayton County:

         No, I promise I’m not just going in alphabetical order. This is a big one.

The issue in this case is whether an employer can fire an employee because of their sexual orientation, i.e. because they identify as heterosexual, homosexual, bisexual, etc.

     As you can probably guess, this is a contentious case that touches on a number of politically-charged issues. If the case gets any mainstream media attention, it’ll probably be pitched as a battle between entitled, overly-sensitive liberals, and Bible-thumping, close-minded conservatives. It’s not that. Don’t get distracted.

What we have is a dispute between a man who believes he was fired because of his sexual orientation and a local government that believes it’s being falsely accused of discrimination. Keep that in mind, and remember that there are good, decent, honest people on both sides. 

The Parties:

         We’re starting off with a consolidated case, so there are actually two sets of petitioners and respondents. However, when the case is decided, it appears that Bostock v. Clayton County will be the title, so we’ll talk about the parties in that case.

         The Petitioner:

         Gerald Lynn Bostock is a former employee of Child Welfare Services in Clayton County, Georgia. From 2003 until 2013, he served as Clayton County’s Child Welfare Services Coordinator. Essentially, his job was to manage a group of people who were appointed as guardian ad litem, which is a fancy legal term that means a person who represents the best interests of children (or other incapacitated people) in court proceedings.

In 2013, Mr. Bostock began playing in a gay recreational softball league called Hotlanta Softball League. He states that he was openly criticized at work because of his sexual orientation and his participation in the softball league. Then, in April 2013, Clayton County conducted an audit of the funds managed by Mr. Bostock. Following this audit, the County fired him for “conduct unbecoming of a county employee.” Mr. Bostock filed suit and alleged discrimination on the basis of his sexual orientation in violation of Title VII (more on this in a minute).

         The Respondent:

Clayton County is a county located in the north central portion of Georgia (check out the map). In this case, the county is involved because it’s the part of the Georgia state government that controls the organization that Mr. Bostock worked for. Clayton County has two main arguments: (1) that it fired Mr. Bostock because of his job performance, not because he’s gay, which would, of course, be perfectly legal; and (2) that even if it did fire Mr. Bostock because he’s gay, there’s nothing illegal about that.

Other Parties:

         As a general rule, we’re not going to discuss amici unless they advance a particularly interesting argument. I want our focus to remain, as much as possible, on the actual parties to the case.

         However, if you’re interested in reading any of the briefs in this case, you can find them here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1618.html.

The Law:

         Ok, here’s the fun stuff. Today, we get to talk about Title VII, which is one of the most important laws that no one has ever heard of. Alright, that’s not exactly true. If you’re a lawyer or an employer of more than 15 people, you’ve probably heard of it. And you probably have some sense of what it does. Well, good for you. You are wise beyond your years. But for everyone else, a little background:

Title VII:

Title VII is—you guessed it—the 7th title of the Civil Rights Act of 1964. That Act is a fascinating piece of legislation, both in terms of its history and in terms of the influence it still wields over American life. Unfortunately, a full history lesson would turn this blog post into a novella, so let’s just get the basics.

The Civil rights Act of 1964 basically bans discrimination based on “race, color, religion, sex, or national origin.” It has 11 titles, each of which addresses discrimination in one or more sections of American society. Some of these will probably sound familiar. There’s Title II, which prevents discrimination in places of “public accommodation,” like hotels or restaurants. There’s Title III, which prevents segregation in state and local government facilities. But the most important of the bunch, especially today, is Title VII, which prevents discrimination in the workplace.

Now, this isn’t an employment law class, so we don’t need to dig into all the nuances, but we should have a general idea of what Title VII actually does. Fascinating, you might be thinking, really riveting stuff. You might even be rolling your eyes. But I’ll keep it short, I promise.

Title VII provides a cause of action for employees who believe that their employer has discriminated against them. What that means, essentially, is that if you believe your employer has fired/disciplined/demoted/reassigned you because of your race, religion, sex, nationality, or the color of your skin, Title VII allows you to sue your employer. Of course, there are all sorts of procedural hoops you have to jump through before you actually get around to the suing part, but that’s the simple explanation.

If you’re paying attention, you might have noticed a few things by now. First, I haven’t told you what I mean when I say “discrimination.” And second, I didn’t mention anything in there about sexual orientation. If this is, in fact, what you were thinking—and don’t lie, nobody likes a kiss ass—then you’re making some brilliant, lawyerly observations. Give yourself a pat on the back. Let’s address your first brilliant observation and save the second one for later.

“Discrimination,” in the land of Title VII lawsuits means essentially the same thing that it means in the real world: treating an employee differently than you would treat other employees, because of some protected characteristic. Pay attention to this description, it’s important. The most obvious thing to note is that Title VII only applies to employment disputes. So if you, for example, go out on the street and start harassing someone from Denmark, this isn’t Title VII discrimination.

Look at these nice Danish people.

In fact, it may not even be discrimination at all. Maybe you go out and harass people of all nationalities. Maybe you’re an equal opportunity harasser of people. I’m not saying you are, mind you, I’m just saying I don’t know for sure that you’re not. But it’s not until you start treating someone differently than you would treat other people that you are guilty of discrimination. What I’m basically saying is that if you treat everyone like shit, you’re not a discriminator, you’re an asshole. Title VII doesn’t ban being an asshole.

And what’s more, Title VII doesn’t even come into play at all until you treat someone differently than you would treat other people, in an employment context, because of some protected characteristic. What this means is that you as an employer are perfectly free to fire your employees because they suck at their jobs, or because their hair is too long, or because they don’t wear deodorant to work. That might be discrimination, but it isn’t Title VII discrimination. Title VII discrimination only comes into play when you fire an employee because they belong to one of the protected categories mentioned in the statute: race, religion, sex, nationality, or the color of their skin. So, to use the same example, if you go ahead and fire one of your employees solely because they’re Danish and you’re oddly-prejudiced against Danish people, you can probably expect to get sued under Title VII.

Now, you’ve probably noticed the potential pitfalls here. First of all, Title VII discrimination cases are notoriously hard to prove. Generally, these sorts of cases come down to an employee accusing their employer of firing them because of their race/sex/religion/nationality, etc., and the employer responding by saying that the reason they were fired was because they were bad at their job. In fact, that’s exactly what happened in the case we’re talking about today. To get around that, employees essentially have to provide hard evidence that their employer discriminated against them. This, as you might expect is hard to do—most discrimination doesn’t occur openly, and only an employer knows their true motive for firing an employee.

On the flip side, Title VII creates a great deal of problems for employers too, not the least of which is that it gives every fired employee some potential ground for a lawsuit. Think about it. We all belong to one of the classes of person that Title VII protects. We all have a race, a sex, a religion (or no religion), a nationality, and a skin color. So when we get fired, we are essentially all free to argue that our employer fired us on the basis of these things. Now, most of us won’t have a case, but there’s nothing to stop us from trying. As a result, federal agencies, courts, and employers face large numbers of unfounded and frivolous Title VII claims every year.

Ok, that’s the basic outline of the legal framework for this case, and that’s all for Part I. Head on over to Part II to pick up the story with arguments made by each party.