SCOTUS Decides Employment Cases - But likely does not apply to religious employers

Jun 15, 2020

In a 6-3 opinion written by Justice Neil Gorsuch, the U.S. Supreme Court issued a lengthy opinion holding that, “An employer who fires an individual merely for being gay or transgender violates Title VII.” The High Court went on to write, “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." 

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a separate dissenting opinion. 

The opinion styled, Bostock v. Clayton County, Georgia, was written as a consolidated opinion with Altitude Express, Inc. v Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission

Liberty Counsel Founder and Chairman Mat Staver, said: “The majority opinion departs from the clear language of Title VII and is no less than legislation from the bench. While the case did not include a religious freedom defense, the Court expressly stated that religious employers will likely have a valid defense under the First Amendment and the federal Religious Freedom Restoration Act.” 

Two lower federal courts (Bostock and Altitude Express) disagreed on whether the plain wording of the word “sex” in Title VII of the Civil Rights Act should include “sexual orientation.” A third case (Harris Funeral Homes) ruled that the law should include “gender identity.” 

The majority opinion assumes that “sex” in Title VII refers to biological male and female, and then states: 

"From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion). 

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. 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. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision."

The majority opinion continued: “First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. . . . Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. . . . Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.” 

Regarding the fact that Title VII did not include “sexual orientation” or “gender identity,” the Court wrote: 

"We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII." 

On pages 32-33, the majority opinion addressed a future religious freedom defense, which was not part of the defense in any of the three cases. In the lower court, Harris Funeral Homes did raise the federal Religious Freedom Restoration Act (RFRA). After receiving an adverse ruling, Harris Funeral Homes did not present that important legal question before the Supreme Court, which for this employer was likely a fatal mistake. Regarding religious liberty, the Court wrote: 

"Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3. 

But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way." (emphasis added).

In his lengthy dissent, Justice Alito wrote: 

"There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. 

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses. 

Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee. 

Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the Pres- ident, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall. 

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous."

Justice Alito notes that the majority rests its opinion on the fact that “sex” in Title VII refers to biological sex of male and female. He then writes: 

"If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender. . . . 

The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. . .
Contrary to the Court’s contention, discrimination because of sexual orientation or gender identity does not in and of itself entail discrimination because of sex." 

Writing a separate dissent, Justice Kavanaugh, wrote: 

"Like many cases in this Court, this case boils down to one fundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of ” an individual’s “race, color, religion, sex, or national origin.” The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court. . . . 

Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30. 

But in the last few years, a new theory has emerged. To end-run the bedrock separation-of-powers principle that courts may not unilaterally rewrite statutes, the plaintiffs here (and, recently, two Courts of Appeals) have advanced a novel and creative argument." 

Justice Kavanaugh went on to write: 

"I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome. . . . 

The Court’s ruling “comes at a great cost to representative self-government.” [citation omitted]. And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come."

The reverberations will involve questions such as whether churches and religious organizations will be exempted from applying this decision in their employment decisions. While churches and religious organizations are not exempt from employment discrimination under Title VII based on sex discrimination, the Supreme Court unanimously upheld the “ministerial exemption” for a church when it terminated a person who otherwise was covered under the American’s with Disabilities Act. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 132 S. Ct. 694 (2012). 

Hosanna-Tabor is a member congregation of the Lutheran Church–Missouri Synod, the second largest Lutheran denomination in America. Hosanna-Tabor operated a small school in Redford, Michigan, offering a “Christ-centered education” to students in kindergarten through eighth grade. The Synod classifies teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God through a congregation. To be eligible to receive a call from a congregation, a teacher must satisfy certain academic requirements. At the time she was terminated, the teacher in question was a “called” teacher and had received a commission as a “minister.” The Court ruled the termination, notwithstanding the fact that the teacher had narcolepsy, was protected by the “ministerial exception.” 

The majority opinion specifically states that religious employers may raise two claims not raised in this case – the First Amendment “ministerial exemption” and the broader defense under the federal Religious Freedom Restoration Act.  In this respect, it is worth repeating what the Court said: “RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate case.” Since there was no dissent from this section, the discussion regarding RFRA may have unanimous support from all nine Justices. Even though Harris Funeral Homes raised RFRA below, it failed to present that question before the Supreme Court. 

Mat Staver said, “A plain reading of federal employment law is clear that it refers to biological male and female. The implications of today’s opinion could be far reaching, particularly with regard to ‘gender identity’ in sports and public accommodations. The original intent and meaning of the law is clear, and the common sense reading of ‘sex’ as male and female is made even more obvious by Congress repeatedly refusing to amend the law. When Congress refuses to amend its own law, courts have no authority to rewrite the law. Yet, that is what the majority of the Supreme Court did today. One bright spot is that the Supreme Court expressly stated that the First Amendment and the federal Religious Freedom Restoration Act will likely provide churches and religious organizations with a defense against Court’s application of Title VII,” said Staver. 

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