It is the law. Gorsuch interpreted the law, he did not attempt to rewrite it from the bench.
I think that it was the correct ruling. This is what all judges should be doing.
Link: https://www.foxnews.com/politics/supreme-court-rules-gay-workers-protected-from-job-discrimination-in-big-win-for-lgbt-rights
Yet, the statute itself is grounded in constitutional principles.
I am not surprised by the 6-3 ruling. Have only read the synopsis.
Kavanaugh's dissent seems to have taken the "strict constructionalist" approach to the statute.
Link: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
I'm not sure there is any res judicata on that one.
The statute says "sex" not "sexual identity." From the opinion: "The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female."
Instead of enforcing the law as debated, written and passed, SCOTUS instead re-wrote the statute so that "sex" not only meant "biological sex" as it meant when the law was passed. Now, by judicial fiat, "sex" also means "the state of mind of a person with sexual identity disorder to such a degree that they cannot or will not recognize their biological sex." SCOTUS increased the scope of the statute beyond what Congress considered. That sounds like judicial activism to me, in which SCOTUS makes law things that Congress never contemplated.
Obviously, I will have to read the opinion. There may be nuances I have not considered. But, from the article, it seems like he was legislating from the bench.
The trigger point for the majority interpretation is "because of," so I'm not sure that 2 of those cases involved in that suit apply. I understand how Gorsuch explained it, but I'm not certain that it was how Title VII was intended to be interpreted.
Seems like this could have been quickly and easily passed in Congress - a clear majority would have supported the bill (I would think).
Hypothetical: Funeral home hires a man. He works there for 6 years, and does well. Then, in the 7th year, he starts wearing women's clothing and make-up, and insists that people call him by a female name and use female pronouns. This creates a stir amongst the elderly attending funerals and detracts from the solemness of the wakes and funerals. Soon, the word gets out, and everyone is going to the next town over for wakes and funerals. So, the funeral home fires him.
Did they fire him because of his sex? Obviously not. He is a biological male, and he never transitioned physically, so he is still a biological male. They hired him as a biological male. They would continue employing him as one.
Did they fire him because he was driving away customers? Yes.
The only issue should be: Is the reason he was was fired not based on a protected class (e.g., because he was driving away customers)?...Or, is the reason he was fired because he was in a protected class (e.g., an African-American, or a woman). If the latter, that is illegal. If the former, that is fair game.
The issue would be the same if he started getting curse words tattooed on his face. Tattoo wearing is not a protected class (or it shouldn't be). Same with sartorial choice--not a protected class (or it shouldn't be). Employers should be able to fire for both. The Court seems to have made one a protected class.
If I get the time later, I will read the case. I'm just going on what the article said, and the first page or so of the case.
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.
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and interpretate it for them as if you know something more than they do about law.
The arguments of the court that he quoted don't apply to my comments, and he knows enough to know that. He's just cutting and pasting crap. When he wants to actually argue to the jury, I'm open.
Look at the way you couch the employee in your scenario:
“Then, in the 7th year, he starts wearing women's clothing and make-up, and insists that people call him by a female name and use female pronouns. This creates a stir amongst the elderly attending funerals and detracts from the solemness of the wakes and funerals.”
You assume that the good employee suddenly becomes “bad business” by virtue of her new sexual identity, — not because of the employee’s misconduct, but because of the way you and others perceive her new sexual identity. You assume that by itself is grounds for firing, - which is exactly why the Court ruled against the Michigan funeral home — who fired their employee because “this isn’t going to work.”
You assume the employee’s new sexual identity will cause a stir in the community and a loss in business. You pre judge the economic consequences because you assume the patrons are just like you.
Give us a scenario where the employer supports the good employee through the transition, through thick and thin, and despite those efforts over a sustained period, the business spirals downward, not because of the employee, but because the community has too many judgmental Neds with sticks up their ass.
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in the case of the funeral home, the person that was hired is not the same as the person that was fired. (s)he, via a unilateral decision, made a controversial and material personal change to the detriment of the hiring organization. termination would then be based on the effect that unilateral decision had on business, not the personal change. it would be similar to hiring a very honest accountant, then having that person suddenly start embezzling.
You attach personal wrongdoing to an employee’s sexual orientation choices, penalizing the employee for making the decision after being hired.
But I understand your economic argument: why should an employer be punished for economic consequences stemming from an employee’s unilateral decision to change their sexual identity? Especially in a “at will” state?
Still have not had a chance to read the opinion, but it seems that economic consequences would be fair game, especially with small businesses (contrast a large corporation).
Edit: FWIW, the statute applies to businesses with 15 or more employees.
Link: https://www.law.cornell.edu/uscode/text/42/2000e
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