By Jonathan Sclar
Lawyers, whether seasoned or just beginners, should care about U.S. Supreme Court jurisprudence for a few reasons. The first is a practical reason: the Supreme Court is the highest court in the land and this decision will have a major impact on the lawyers practicing in the areas of employment law and, potentially, education law and other fields of law. Second, being knowledgeable about past, present, and future, Supreme Court jurisprudence will make you a better lawyer; it will give you a greater ability to make and understand arguments, to know the direction that your field is heading, and to be a more effective advocate for your clients. Finally, and most important, most of us went to law school because we have a deep passion for the law and the study of law; why should we give up on that passion merely because we've begun to practice? This article explains the pending Civil Rights Act case before the U.S. Supreme Court, which will have a strong impact on lawyers practicing in this field.
Title VII of the Civil Rights Act of 1964 (the "Civil Rights Act") prohibits employers from discriminating against their employees on, amongst other things, the basis of their sex.1 In the October 2019 term, the United States Supreme Court will interpret the meaning of this provision; specifically, it will determine if discrimination on the basis of sexual orientation constitutes discrimination "on the basis of sex" for the purposes of the Civil Rights Act. The case is called Bostock v. Clayton County, Georgia and it is a consolidation of two lower-court cases that dealt with the same claim.
The first case is an Eleventh Circuit case named, Bostock v. Clayton County, Georgia.2 Gerald Bostock, a gay man, worked as a child welfare services coordinator for Clayton County, Georgia. Criticism for Mr. Bostock's sexual orientation derived in response to his participation in a gay recreational softball league. Shortly thereafter, the county fired Mr. Bostock for "conduct unbecoming of its employees." Mr. Bostock filed suit, alleging violation of the Civil Rights Act. The district court dismissed the lawsuit and the Eleventh Circuit affirmed the district court's decision. 3
The second case is a Second Circuit case named, Altitude Express, Inc. v. Zarda. 4 Here, Donald Zarda, a gay man, worked as a skydiving instructor for Altitude Express. Part of Zarda's job was to fly in tandem with customers, some of whom were female. To ease the minds of his female customers, Zarda sometimes informed them of his sexual orientation. On one occasion, a customer complained that Zarda had inappropriately touched her and disclosed his sexual orientation as an excuse. In response to this complaint, Altitude Express fired Zarda. Zarda filed suit in district court, claiming that he was fired on account of his sexual orientation and in violation of the Civil Rights Act. The district court ruled for Altitude Express but the Second Circuit, on a rehearing en banc, overturned the decision of the district court and ruled for Zarda, holding that discrimination on the basis of sexual orientation necessarily includes discrimination on the basis of sex. 5
The court's opinion, written by Judge Katzmann, was motivated by a finding that discrimination on the basis of sexual orientation occurs, in part, because of the heteronormative expectations that society possesses for each sex. For example, discrimination on the basis of a man's homosexual orientation is based on the expectation that men should only be sexually attracted to women. Further, invoking the "but for" test, the court emphasized that Zarda would not have been fired but for his sex. The argument is as follows: if Zarda were a woman who was attracted to men, as opposed to a man who is attracted to men, he would not have been fired. It should be noted, as it was in the dissent, that the "but for" test, applied differently, would reach a different result. For example, Zarda was fired because he is a man who is attracted to men; if he were a woman who was attracted to women, he still would have been fired.
The main dissent, written by Judge Lynch, is based on originalism and textualism. Originalism is the interpretive philosophy, or tool, that says that the interpretation of a text is best accomplished by, in one version of the philosophy, discerning the intent of the drafters of the text and, in another version of the philosophy, discerning the meaning of the words of the text when the text was published or enacted. Textualism, often associated with originalism but not synonymous with it, is an interpretive philosophy, or tool, that interprets the text without reference to extrinsic sources attempting to explain such text.
Judge Lynch began his dissent by noting that the impetus behind the Civil Rights Act was the "movement for the equality of African-Americans." This essentially sets up an original intent argument: the drafters of this text were motivated, almost exclusively, by the desire to legislate equality for African-Americans; therefore, it is inapposite to argue that the drafters intended, without expressly writing, to legislate equality for gay people. The obvious rebuke to this argument is two-fold: (1) the drafters legislated not just for racial equality but also for sex, religion, and national origin; and (2) the drafters did legislate for the equality of gay people: the prohibition of discrimination based on sex includes the prohibition of discrimination based on sexual orientation, as the majority opinion held.
However, the dissent pointed to legislative history, and the history surrounding the enactment of the statute, that evidences that "sex" was an add-on to the monumental piece of legislation that is the Civil Rights Act. Further, according to the dissent, "same-sex sexual relations were criminalized in nearly all states" and both the American Psychiatric Association and the American Psychological Association classified homosexuality as a mental illness or disorder. Against this backdrop, the dissent argued, it is erroneous to conclude that the drafters of the Civil Rights Act intended to prohibit, or even contemplated discrimination on the basis of sexual orientation. The dissent also pointed to original meaning and stated that "sex" was, and is, defined as "biologically male or female," and noting that the definition of sex does not include or refer to sexual orientation.
The underlying debate of discussion between the majority and the dissent, in this case, is the debate over how our society should confront new problems that arise as our society evolves. The first answer to this question, seemingly supported by the majority, is that the law currently on the books already deals with these new problems that arise. This is supported by the school of thought that says that legal texts are living and breathing documents. Law is more general than it is specific; therefore, courts must interpret the general law to cover specific problems, the argument goes. The phrase "on the basis of sex" covers discrimination on the basis of biologically-defined sex but also on the basis of sexual orientation, which is derived from sex, and, potentially, even covers discrimination on the basis of gender (i.e., if an employee is fired for being transgender). There is support for this school of thought in the jurisprudence of John Marshall from a case called M'Culloch v. Maryland. 6 In that case, Marshall stated: "[the Constitution's] nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." He went on to say that "[the Constitution is] intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." It should be noted that he referred only to the U.S. Constitution and not to any and every statute. It's possible that Marshall would have confined this analysis strictly to the Constitution; nevertheless, these statements from Marshall arguably support the school of thought that says legal texts are living and breathing and should continuously evolve.
The dissent would answer the same question in a different way. The dissent would say that the proper way to confront evolving problems in our society is for the legislatures to enact legislation to confront those problems. The democratically elected legislative branch is the branch of government that is charged to make law; the judicial branch, on the other hand, is charged with merely interpreting those laws enacted by the legislative branch. This school of thought believes in process over results. Judge Lynch, in his dissent, stated that he wishes the Civil Rights Act, or some other piece of legislation, would have outlawed the discrimination on the basis of sexual orientation; but it simply had not and, therefore, it was not his role to interpret the statute in such a way as to make it outlaw that type of discrimination. The legislative branch is the place for that because, for one, it is closer to the people than the judicial branch is and, two, the legislative branch is responsible for "reading the pulse of the nation." At least some people would argue that this is not the role of the courts.7
The decision in this case will not only provide a federal cause of action for employment discrimination on the basis of sexual orientation, but it will also change the way young lawyers counsel their clients, whether employers or employees. Further, it could impact the way law is interpreted in general; that is, whether the meaning of texts remains constant over time or evolves as society evolves.
Jonathan Sclar recently graduated from St. John's University School of Law and is an associate at Cullen and Dykman LLP, pending admission to the New York State Bar.
1. 42 U.S.C. ยง 2000e-2(a).
2. 723 Fed.Appx 964 (11th Cir. 2018).
3. Facts retrieved from Oyez: https://www.oyez.org/cases/2019/17-1618.
4. 883 F.3d 100 (2d Cir. 2018).
5. Facts retrieved from Oyez: https://www.oyez.org/cases/2019/17-1623.
6. 17 U.S. 316 (1819).
7. For a more in-depth, and eloquent, discussion of this school of thought and the opposing school of thought, watch the discussion between Justice Scalia and Justice Breyer, here: https://www.annenbergpublicpolicycenter.org/justices-scalia-and-breyer-discuss-interpreting-the-constitution/.