Justice Gorsuch Sneaks a Kneecapping of Title VII Class Actions into the Bostock Decision

INTRODUCTION

Readers might like to read for themselves Justice Gorsuch's words in the June 15, 2020 US Supreme Court case of Bostock v. Clayton County, interpreting how effectively Title VII of the Civil Rights Act can impact the class/structural nature of employment discrimination.

Title VII prohibits employment discrimination based on sex, race, national origin, and religion; the Bostock decision adds LGB and transgender discrimination to the sex category. As a flagship for US civil rights law, the Bostock holding will control or heavily influence other federal and state civil rights legislation and regulations.

In Bostock, Justice Gorsuch announces a new test for proving discrimination under Title VII's sex category, which extends immediately to the other protected categories:

"An employer violates Title VII when it intentionally fires an individual employee based in part on sex." (bolding mine)

In short, Gorsuch interprets Title VII to apply only to individuals not to classes of people. He also appears to require direct proof that the employer intended to discriminate. Whether the new Bostock test is part of the reasoning leading to the holding in the case and therefore controlling precedent, or merely dicta, that is, discussion outside the holding with no precedential value, will no doubt be litigated soon. I think there is a strong argument that it is indeed part of the reasoning leading to the holding in the Harris case (joined into the Bostock case), which is that LGB and trans people are covered under the "sex" category of Title VII. Here is more information about the role of "dicta" in such opinions.

Radical and gender-critical feminists are studying the opinion, which has been taken by mass media solely as a triumph for employment rights and LGB and T rights, and asking themselves, is there more to it? They are finding what appear to be two attacks on employees. The first to be noticed is Gorsuch's strong disclaimer that the decision expressly does not decide whether religious groups or individuals can claim an exemption to allow them discriminate based on their beliefs. This is being interpreted as an invitation to religious conservative law firms like the Alliance Defending Freedom to bring such a "religious freedom" case to the court and expect a favorable ruling.

But it is the second attack which may have the greater impact on the effectiveness of our civil rights laws. The new test for discrimination enunciated in Bostock appears to undercut, or even abolish, class complaints and class actions claiming discrimination.

BACKGROUND

Title VII has been a mainstay for women and minorities seeking protection in employment, educational, and publicly-funded institutions like hospitals and public housing, for 56 years. From an early date, class action administrative complaints and lawsuits have been successfully pursued by women seeking to remedy inequalities for women in situations of class inequality -- for instance, women's janitor pay vs. men's, and employment ads segregated into women's and men's sections.

Some of these class complaints under Title VII led to tremendous and rapid reform of large US institutions. I always think of Bernice Sandler and the Women's Equity Action League's 1970 class complaints made to the D/HEW's Office for Civil Rights, regarding discrimination against women in academic positions, as a watershed. The result was that academic employment was pried open for women professors, soon followed by the full opening of graduate education to US women. Our current greatly-improved statistics concerning representation of women professors, women PH.D.s, women in law school and med school, and women college administrators, directly result from class action complaints pursued under Title VII that early.

Since then there have been hundreds of court decisions upholding the use of class complaints in determining sex discrimination in employment and education, using a test called "disparate impact." Using a "disparate impact" test means nothing more than looking to see whether similarly-situated men and women are being treated differentially as groups (sex classes), following the statistics. The same test has often been used in race discrimination cases in the same way.

The disparate impact test was developed in response to an issue in many individual discrimination cases: deliberate intent to discriminate by an employer could not be proven. There was often no way to confirm or disprove a subjective statement by an employer that "She didn't get along with her co-workers" or "Her performance declined based on my [subjective]] evaluations". In academia, tenure was generally granted or denied based on secret deliberations by a committee of professors. Determining the employer's pattern and practice of treating similar employees over a period of time could provide objective evidence that the employer's excuses were pretexts.

In complaints filed by groups of similarly-situated workers, the disparate impact test was a primary source of proof. An employer's protestations that adverse employment decisions primarily affecting only one protected group over time were unintentional could be strongly rebutted using the test.

Class actions are widely used in many areas of law today, saving time, money, and judicial resources so that a similarly-situated protected group can sue in one consolidated case.

Thus the holding Justice Gorsuch calls "simple" immediately raises important general questions about US civil rights law: Does it mean employees can no longer file complaints or sue as groups? Does it mean that disparate impact on the group of employees as a class is no longer a judicially-approved method of proving a discriminatory pattern and practice? Does it mean disparate impact can no longer be used to show an employer's excuse is pretextual? And what does it mean that the Court appears to reject consideration of the statute's original purpose to remedy historical, pervasive, systematic discrimintion against women and minorities?

FROM THE BOSTOCK DECISION

Here is the quote from p. 11 of the Bostock decision by Justice Gorsuch:

"At first glance, another interpretation might seem possible. Discrimination sometimes involves “the act, practice, or an instance of discriminating categorically rather than individually.”

"On that understanding, the statute would require us to consider the employer’s treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus the other as a whole.

"That idea holds some intuitive appeal too. Maybe the law concerns itself simply with ensuring that employers don’t treat women generally less favorably than they do men. So how can we tell which sense, individual or group, “discriminate” carries in Title VII?

"The statute answers that question directly. It tells us

three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” And the meaning of “individual” was as uncontroversial in 1964 as it is today: “A particular being, as distinguished from a class, species, or collection.”

"Here, again, Congress could have written the law differently. It might have said that “it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the terms or conditions of employment.” It might have said that there should be no “sex discrimination,” perhaps implying a focus on differential treatment between the two sexes as groups.

"More narrowly still, it could have forbidden only “sexist policies” against women as a class. But, once again, that is not the law we have.

"The consequences of the law’s focus on individuals rather

than groups are anything but academic...

"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."

Justice Gorsuch asks, "So how can we tell which sense, individual or group, “discriminate” carries in Title VII?" The answer based on half a century of cases, has been "both". But he treats his question as an either-or choice. There's no need to cut either choice, but that's what he seems to think he needs to do. That's the new interpretation. Whether it's dicta or not, it's a kneecapping of class action litigation. 

Legal technicalities aside, why did Justice Gorsuch choose to attack class actions under Title VII? It's hard to see why this reasoning needed to be included in a case that he called "simple", involving only a single employee and a small employer, where no class complaint had been made. Is there a political position hidden behind this? Let's look at the impact of Gorsuch's words on radical feminist theory, and more broadly, liberation theory of all the protected groups under Title VII, including Black, Latino, Asian, Jewish, and LGB people.

A radical feminist analysis will suggest that, besides making it harder for such groups to sue and prevail in Title VII cases, Gorsuch is setting forth a national judicial proclamation that there is no judicial remedy for systemic or structural racism or sexism or religious bigotry in the US: Congress adopted the Civil Rights only on behalf of individuals who might suffer discrimination, not groups.

There goes male domination as a systemic legal violation. And there goes the Judicial Branch of the government's acknowledgement of the basic impact of feminism, which insists on the class, systemic nature of sexism.

Gorsuch, a conservative, has come down on the side of MRAs, social conservatives, and evangelicals alike. It's a credit to his canniness that his opinion is being hailed by feminists anyway. The real impact of this opinion will be delayed. It will come as cases under Title Vii continue to be brought to the Court. Some individual woman might need help because she's being sexually harassed. But let a large group of women be denied promotional opportunities by a large employer? Not coverable in a single lawsuit any more, unless Congress amends Title VII to overrule the Supreme Court interpretation of the current language.

The systemic impact of Title VII is lost. That's most certainly not what the enactors of the Civil Rights Act intended, but Gorsuch says elsewhere in the opinion that their intentions don't matter. And the majority of the Supreme Court, including all its women justices, agreed.

I conclude that the Bostock opinion elevates LGB and T people to protected individuals under the Civil Rights Act in peculiarly contingent and rob-Peter-to-pay-Paul ways:

1.  I've already written elsewhere that it ties that elevation of LGB and T people to a corresponding potential future overall exclusion of statutory coverage of a substantial number of US employers (those exercising "freedom of conscience" to discriminate).

2.  As I discuss here, it also narrows the type and character of evidence allowable to prove such cases. It excludes group participation and group remedies. It erases the systemic discrimination of sexism and racism.

3.  And I haven't even gotten around to discussing how it cuts the heart out of the trans insistence that trans women are to be treated legally as women, or that people can change sex. Instead, it is the employer's discrimination against a male who wants to act like a female, or vice versa, which is key to the finding of sex discrimination. The male can only be discriminated against in his capacity as a biological male who is treated differentially from similarly-situated females.

I welcome that part of the holding, because it negates the transextremist assertion that biological sex can be changed and that trans women must be treated as women because they are women. But transextremists will not welcome it, and don't yet seem to have noticed what they have lost in this regard.

As Gorsuch writes, "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."

Under this opinion, trans women are treated as gender-nonconforming men (and yes, the case of Price-Waterhouse v Hopkins is cited in support of this holding). That is not the victory the trans lobby and the ACLU were going for; rather, it is a defeat of trans extremist ideology.

4. Gorsuch seems to also adopt an inchoate theorization of Judge Moore, the appellate judge in Harris v EEOC (later consolidated into Bostock), that the word sex is not a shorthand for men and women, but instead an abstraction. "Sex" becomes a unitary abstracted concept rather than a bi-modal asymmetrical biological term, a legally operative single "trait" which doesn't need to acknowledge male or female.

At p. 19 of Bostock, Gorsuch writes, "By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex."

This abstraction appears to derive from an incorrect (to my mind) interpretation of the sex-stereotyping case of Price-Waterhouse v Hopkins https://casetext.com/case/equal-empt-opportunity-commn-v-rg-gr-harris-funeral-homes-inc-5 . Judge Moore writes: "Based on Price Waterhouse , we determined that "discrimination based on a failure to conform to stereotypical gender norms" was no less prohibited under Title VII than discrimination based on "the biological differences between men and women." But that sets sex-stereotyping apart from sex discrimination, interpreting it to be a coequal base of discrimination, when it is only derived from "the biological differences". It also conflates gender and sex in a confusing way. The result of this thread of mistaken analysis will have to remain to be seen.

4. One final question remains to be asked again and again: why did Justices Ginsburg, Sotomayor, and Kagan concur in this destructive opinion? I've guessed already that they traded all the destructive impacts for the singular laudable goal of getting LGB and T people some degree of employment protection. Why not at least write a separate concurrence or concur in part and dissent in part? I don't know, but it seems to this radical feminist that the price of their deal with Gorsuch was too high.



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 (cites omitted by me)(bolding added)

This comment (now expanded) was originally published on July 21, 2020 in Radical Feminism Resources on Facebook.