Bostock v. Clayton County: An Unexpected Victory

A photo of the White House with rainbow lights shown on it[The following is a guest post from Alexa Bradley (L’18).]

The days in which same-sex couples could marry on Sunday and be fired on Monday are no longer.

Gone, too, are the days in which a transgender employee could be fired for giving themselves the gift of living their life as the person they were always meant to be. On June 15, 2020, in Bostock v. Clayton County Board of Commissioners, the United States Supreme Court ruled in a 6-3 decision that Title VII’s prohibition of workplace “sex” discrimination clearly encompasses discrimination based on one’s sexual orientation or transgender status because “homosexuality and transgender status are inextricably bound up with sex.” This long-awaited decision was an unexpected victory for the LGBTQi community, of course, but also for the sanctity of Title VII.

Before I get into the weeds of the Bostock opinion, a little background may be helpful. I’ll first explain Title VII and some of the early Supreme Court case law interpreting “sex.” Then, before I explain the opinion itself, I’ll explain how the circuit courts had interpreted “sex” when it came to claims involving sexual orientation and transgender status. Finally, after explaining the majority opinion, I’ll unravel the dissenting arguments.

 Title VII Background
Title VII was enacted by Congress in 1964 to address the pervasive problems of employment discrimination and to ensure that, among the other enumerated characteristics, an employee’s “sex” was not relevant to their selection, evaluation, or compensation. According to Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), Congress drafted Title VII in broad terms to “strike at the entire spectrum of disparate treatment between men and women.” Since Title VII’s passage, the Court has been tasked on a number of occasions with clarifying the scope of protection provided by Title VII’s ban on “sex” discrimination.

For example, in 1971, the Court held in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam), that an employer who hired men with school-aged children but would not hire women with school-aged children had engaged in sex discrimination in violation of Title VII. The Court’s decision in Phillips created the “sex-plus” theory of discrimination. Sex-plus discrimination is found when an employer, explicitly or in effect, classifies an employee on the basis of sex plus another characteristic, such as “women who have children.” So, in Ms. Phillips’s case, her employer discriminated against her because she was (A) a woman, who had (B) school aged children. Thus, her employer’s decision was motivated, in part, by Ms. Phillips’s sex, which violates Title VII.

In 1978, the Court considered in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), whether Title VII permitted an employer to require women to make larger contributions to the pension fund than men. The employer argued that the policy was justified because women are likely to live longer than men, so women would receive more over time from the pension fund. However, recognizing Title VII’s clear focus on the individual rather that a group, the Court rejected the employer’s justification. The Court reasoned that it may be true that women, as a whole, live longer than men, but an individual woman may die as early as a man, and that the individual, therefore, is the proper focus for Title VII. Thus, the Court held that an employer engages in sex discrimination in violation of Title VII when the employer uses generalizations or assumptions about an entire class of employees that results in individual disparate treatment.

In 1986, the Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), that claims of workplace sexual harassment fall under the umbrella of “sex discrimination” claims contemplated by Title VII, and in 1989, the Court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that discrimination on the basis of an employee’s failure to conform to expectations of gender norms – or sex-stereotyping – constitutes “sex” discrimination in violation of Title VII.

Finally, in 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), an opinion written by the late Justice Antonin Scalia, the Court found that Title VII’s prohibition on “sex” discrimination applies to cases of workplace harassment between members of the same sex. In so holding, Justice Scalia explained “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79.

In considering the above-cited opinions, one central theme seems to ring through: “sex” must be interpreted broadly.

This theme becomes unavoidably clear when considered with Congress’ abrupt response to the Court’s holding in General Electric Co. v. Gilbert. 429 U.S. 125 (1976).  In Gilbert, the Court found that a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide such benefits for any absence due to pregnancy did not constitute sex discrimination. In response, Congress passed the Pregnancy Discrimination Act of 1978, which explicitly overturned Gilbert and expanded Title VII’s definition of “sex” to cover “pregnancy, childbirth, and related medical conditions.” 42 U.S.C. § 2000e(k). Congress’ swift action to overturn Gilbert sent a clear message to the Court – the protected characteristics enumerated in Title VII are to be afforded broad interpretations.

How We Got Here
This is the landscape of Supreme Court decisions against which Bostock must be understood.

Continue ReadingBostock v. Clayton County: An Unexpected Victory

Violent Crime & Recidivism: Symposium Issue Now Available

The threat of violent recidivism looms large in policy debates about sentencing and corrections. Prison populations in Wisconsin and across the United States remain near historic highs. Yet, efforts to bring down those populations often run into the objection that most of the individuals in prison have been convicted of violent crimes. What if these individuals reoffend after release? The stakes seem frighteningly high when we contemplate the possibility of shorter sentences for individuals who have physically harmed others in the most damaging and disturbing ways–shootings, stabbings, sexual assaults, and so forth.

Last summer, Marquette Law School hosted a conference that brought together leading researchers to address the question of whether there might be better alternatives than long-term incapacitation  for responding to the threat of violent recidivism. Those of us in attendance enjoyed a thought-provoking series of presentations and some lively Q&A with audience members. Now, the papers from the conference have been published in a symposium issue of the Marquette Law Review.

Here are the contents:

Continue ReadingViolent Crime & Recidivism: Symposium Issue Now Available

How are Wisconsin voters experiencing the pandemic economy?

Wisconsin’s unemployment rate hit 14 percent in April and remained at 12 percent in May. Combining surveys from late March, early May, and mid June, the Marquette Law Poll found that 13 percent of Wisconsin registered voters had lost a job or been laid-off due to the coronavirus outbreak. A further 23 percent said this had happened to a family member. Likewise, 23 percent reported working fewer hours due to the coronavirus outbreak, and another 29 percent said this had happened to a family member. Altogether, 27 percent of those interviewed had either lost a job, lost hours, or both at some point during the economic shutdown.

Taken by themselves, these numbers suggest an economic catastrophe on par with the Great Depression, but that has not happened–at least not yet–in the experiences of most Wisconsinites. In nearly every poll, we ask respondents to evaluate their family’s financial situation–are they “living comfortably, just getting by, or struggling to make ends meet?” The trend is remarkably flat. In January 2020 63 percent said they were living comfortably–statistically indistinguishable from the 61 percent saying the same thing in June. So what gives?

Graph of self-reported subjective economic status, January - June 2020

Our poll alone cannot answer this question definitely, but it can offer some clues. Just as COVID-19 has hurt some communities in Wisconsin more than others, so too has the accompanying economic crisis. Along with disproportionate cases and deaths, Black and Latinx Wisconsin residents faced a stark economic toll. The number of Black respondents “struggling to make ends meet” increased from 10 percent in January/February to 22 percent during the pandemic. The proportion of Latinx respondents “living comfortably” declined from 66 percent to 47 percent over the same period.

In early 2020, prior to the economic shutdown, 63 percent of respondents described their family as “living comfortably.” People who lost their job during the pandemic did indeed report declining financial comfort. Just 37 percent of those who lost a job were “living comfortably.” Even worse off were those whose families lost multiple jobs. Only one in three people in this position were “living comfortably;” 57 percent were “just getting by,” and 11 percent were “struggling to make ends meet.” But people who suffered no financial ill effects actually improved their self-assessed financial well-being during the pandemic. Among people whose families lost no jobs or hours, 70 percent were “living comfortably,” 25 percent “just getting by,” and only 4 percent struggling to make ends meet.

The table below compares experiences by income level in 2019. To maximize cases, I pooled together all respondents who reported a job loss among any member of their family.

Before the pandemic, 37 percent of people with household incomes below $40,000 said they were living comfortably. People in this income bracket whose family lost at least one job during the shutdown now report a 24 percent rate of “living comfortably”–a 13 percent decline. Forty-seven percent of people from families who avoided income losses now say they are “living comfortably”–a 10 percent increase. The same pattern repeats itself in each other income tier.

percent of respondents living comfortably by job loss

What accounts for the increase in “living comfortably” among those who’ve kept their jobs? I see three possible explanations, all of which probably contribute in some way.

First, job losses in the pandemic have been concentrated among lower-wage workers. It could be that those who lost their jobs were already more likely to be financially struggling. Second, people whose families have kept their jobs may feel themselves lucky and are thus more likely to positively evaluate their subjective financial well-being. Third, people who have maintained an uninterrupted income stream may actually be making and/or saving more money than before. Whatever the cause, the pandemic appears to be sharpening the division between haves and have-nots in Wisconsin’s economy.

Continue ReadingHow are Wisconsin voters experiencing the pandemic economy?