Justice Gorsuch Just Opened Pandora’s Box
Six months ago, when journalist Christopher Caldwell published a book asserting that the Civil Rights Act of 1964 had grown into a “rival constitution” that superseded the old Constitution, everyone laughed. The New York Times review accused Caldwell of rehashing old segregationist arguments. Singled out for particular ridicule was the sentence on the penultimate page of The Age of Entitlement where Caldwell advises conservatives that “the only way back to the free country of their ideals was through the repeal of the civil rights laws.” How could the fate of American freedom depend on something so radical, and so unlikely, as the repeal of the Civil Rights Act?
No one is laughing now.
Justice Neil Gorsuch, in his majority opinion in Bostock v. Clayton County, has decreed that the anti-discrimination protections afforded to women under Title VII of the CRA must be extended to gays, lesbians, and the transgendered, because all of these are discrimination “on the basis of sex.”
This is not a narrow ruling that just means you can’t fire a person for being gay. Extending civil rights law to protect a whole new category carries with it a host of ancillary protections.
Harassment is a form of workplace discrimination. An employee can’t be subjected to a “hostile work environment” because of their membership in a protected class. Under Bostock, an LGBT employee could allege a hostile work environment if a coworker expressed the wrong opinion about Prop 8 or said he believed a person’s sex is determined at birth. Some employers are already justifying firing workers who won’t use someone’s preferred pronouns because discrimination law requires it. Misgendering, they say, is harassment.
Diversity training is a multi-billion dollar industry because of Title VII. Companies hire consultants to give seminars on “white fragility” not because they are progressive but because it protects them from lawsuits. They have a better chance of prevailing in an employment discrimination case if they can point to diversity training programs as evidence of their commitment to civil rights.
De facto hiring quotas are another inevitable consequence of civil rights law as it has been interpreted. If a company doesn’t employ a minority roughly in proportion to its share of the population, someone from an underrepresented group can use that disparity as evidence that the company discriminated against them. (Gallup estimates that 4.5% of the population is gay.)
It is no use protesting that the text of Title VII doesn’t mandate any of this, or that the Bostock opinion limits itself to outlawing explicit policies against hiring LGBT workers. The whole story of employment discrimination law, from 1964 to today, is an endless parade of new mandates not specified in the statute being hatched by human resources departments, adopted by companies eager to fend off lawsuits, and ultimately incorporated into case law.
Anti-discrimination law is kept vague for precisely this reason. It gives the activists more room to get creative. In the 1970s, the federal Justice Department begged the Equal Employment Opportunity Commission to issue a specific rule on how closely a company’s workforce had to match broader community demographics to avoid a discrimination charge (they suggested a cutoff of 80 percent). The EEOC preferred to keep its rule vague.
Title VII doesn’t require performance evaluations, grievance procedures, written job descriptions, speech codes, minority hiring targets, or diversity bonuses—yet all of these have been extrapolated from it. More than 80,000 charges of discrimination are filed with the EEOC in an average year, and tens of thousands of those eventually become lawsuits or five- or six-figure settlements. Employers have good reason to want to act defensively.
And of course the Bostock ruling won’t stay confined to employment law. The majority opinion protests, disingenuously, that “sex-segregated bathrooms, locker rooms, and dress codes” are “questions for future cases.” But federal law is full of prohibitions on sex discrimination (Justice Alito’s dissent lists over 100 such statutes), and every one of those will have to be reconsidered in light of today’s ruling.
Gorsuch claims that yesterday’s ruling was grounded in judicial modesty. It doesn’t matter that sodomy was illegal in 49 states when the Civil Rights Act was passed, he says. If you can’t fire a woman for marrying a man, you can’t fire a man for doing the same without discriminating on the basis of sex, simple as that. Alito’s dissent accuses such rigid textualism of treating laws “as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization.” Both justices invoke Antonin Scalia to support their arguments.
Conservatives are split on the question of which justice is the real judicial activist, but both sides agree that in this case the solution is obvious: amend the law. It would be a curious silver lining to this massive defeat for conservatives if its ultimate effect were to be the rollback of the Civil Rights Act, which seemed so unthinkable when Caldwell’s book came out in January, a real political possibility. Once conservatives start thinking about what changes would have to be made to civil rights law before the left’s grip on our country’s institutions can begin to be loosened, it won’t stop with clarifications to the definition of sex.