Historic Decision to Celebrate Pride

by Nathan Willner

NCBA Government Affairs Officer

It could not be more appropriate as those around our country celebrate Pride Month that the U.S. Supreme Court (SCOTUS) rendered its historic ruling on workplace discrimination.

In a 6-3 decision in Bostock v. Clayton County, the SCOTUS held that gay and transgender employees can institute litigation against their employers under Title VII for discriminating against them because of their sexual orientation or gender identity.

Title VII of the Civil Rights Act of 1964 outlaws employment discrimination on the basis of race, color, religion, sex and national origin.

While previously a majority of states permitted discrimination based on a person’s sexual orientation or gender identity, the ruling in this matter provides for actions to be brought under Title VII. 

The Court, in an opinion written by Justice Neil Gorsuch, began its analysis by considering the definition of the word “sex.” The Court noted that Title VII prohibits taking certain actions “because of” sex, meaning “sex” can be one of multiple factors. 

Justice Gorsuch noted: “From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: . . .  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.” 

Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.

Justice Samuel Alito wrote a lengthy dissenting opinion which Justice Clarence Thomas joined. Alito described the majority opinion as “legislation.” He noted that neither “sexual orientation” nor “gender identity” are listed in Title VII as grounds for prohibited discrimination. 

Justice Brett Kavanaugh wrote a shorter, solo dissent opining that it is Congress’ and the President’s responsibility to amend Title VII, not the Court’s, but also applauded the hard work by the LGBTQ+ community.

National Creditors Bar Association is committed to diversity and inclusion and recently formed a Diversity & Inclusion Committee. If you are interested in joining, please reach out to [email protected].