Does a Leading LGBT Civil Rights Case Jeopardize Corporate Diversity, Equity, and Inclusion Hiring Programs?

How the United States Supreme Court's Landmark Decision in Bostock v. Clayton County may Have Unintended Consequences Under the Civil Rights Act of 1964

In the tumultuous month of June 2020, the United States Supreme Court handed down its landmark decision in Bostock v. Clayton County,¹ which held that sexual orientation and gender identity were prohibited categories of employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). This had always been a fringe theory in LGBT legal circles that even the most pro-gay rights courts had declined to accept.²

But in Bostock, not only did the Supreme Court embrace this once fringe theory in a decisive 6-3 decision, the decision was also authored by none other than Justice Neil Gorsuch, an arch-conservative appointed by Donald Trump.

Bostock has proven monumental. The Biden Administration has championed Bostock and eagerly applied its holding to every single federal law that prohibits discrimination “on the basis of sex”, not just Title VII.³

As predicted by the dissents in Bostock, issues have arisen as to separate sex bathrooms, separate sex locker rooms, college sports teams, professional sports teams, separate sex college dormitories, parental rights, free speech, and insurance payments for cosmetic surgery.⁴ The lower courts are now, as predicted, wrestling with these issues.⁵ Whether one agrees with the Biden Administration on the application of Bostock, Bostock is the legal basis for changes to many longstanding policies.  

But does Bostock have another unforeseen impact?⁶

As suggested by Harvard law professor, Jeannie Suk Gersen, the way Bostock was written threatened the legality of race-based affirmative action in higher education and so-called Diversity-Equity-Inclusion programs that engage in preferential race-based and sex-based hiring, recruitment, and promotions.⁷

DEI programs have often been popular among big American companies from Wall Street to Hollywood and the Silicon Valley. In the wake of George Floyd’s murder, many leading corporations and business associations across the United States rushed to implement them or expand them.

Many opponents of DEI programs have long argued that DEI programs violate Title VII.⁸ And textually, Title VII prohibits DEI programs that engage in race-based and sex-based preferential hiring.⁹

However, previous United States Supreme Court decisions have occasionally allowed some DEI programs to exist under Title VII, using traditional models of statutory interpretation, looking at Congressional intent of Title VII and Title VII’s overarching purpose.¹⁰ The Court has taken the fairness of interpretation in the broader sphere of race relations into consideration.¹¹

However, through a close reading of Bostock, it becomes quite apparent that the legality of DEI programs under Title VII is in jeopardy due to Bostock.¹²

Why?

Because the defenses and legal rationales used to justify the legality of DEI programs under Title VII are the very same defenses and legal rationales that employers argued shielded them from Title VII liability in Bostock. Yet Bostock rejected every single one of those legal arguments to hold that Title VII prohibits discrimination on the basis of sexual orientation and gender identity in all circumstances.¹³

Some might find this interpretation of Bostock to be utterly preposterous or shocking because it is at odds with current politics.¹⁴ Most who support the outcome in Bostock also tend to support DEI programs. Most who oppose DEI programs also tend to oppose Bostock.

However, in oral arguments last October on the two pending affirmative action cases before the United States Supreme Court, which rely on similar legal justifications as DEI programs do to maintain their legality, Justice Gorsuch raised the point in this following exchange with United States Solicitor General Elizabeth Prelogar.

JUSTICE GORSUCH: I -- I’d like to
focus for a moment on -- on the statutory
question. It’s one I raised earlier. I’d like
your thoughts on it.
We have both a constitutional claim
but also a statutory claim, Title VI. And I
understand our precedents have often conflated
the two, but put that aside for the moment.
Justice Stevens made a powerful
argument in Bakke that whatever the Fourteenth
Amendment permits or does not permit, Title VI’s
language is plain and clear just as Title VII
is. And Title VII does not permit
discrimination on the basis of sex, and Title VI
does not permit discrimination on the basis of
race. Can you help me with that?”¹⁵

For those wondering what that means, the affirmative action plan at the University of North Carolina has been challenged as unconstitutional under the Fourteenth Amendment Equal Protection Clause. The plan is also separately being challenged as illegal under the federal civil rights law known as Title VI. Here, Justice Gorsuch is questioning whether even if the University of North Carolina is acting constitutionally, their plan is still illegal under federal statutory language.

“GENERAL PRELOGAR: Sure, Justice Gorsuch. So I think that the Court in Bakke and Grutter correctly interpreted Title VI, the
statute, as --
JUSTICE GORSUCH: Where -- where did Justice Stevens err?
GENERAL PRELOGAR: In not recognizing that the term “discrimination” in this context is ambiguous. And I think that the legislative history therefore carries --
JUSTICE GORSUCH: We didn’t find it --
GENERAL PRELOGAR: -- forth in this context.
JUSTICE GORSUCH: -- we didn’t find it ambiguous in Bostock. Why should we find it ambiguous now?
GENERAL PRELOGAR: Well, I think that -- I think that the statute doesn’t define --
JUSTICE GORSUCH: Were we wrong in Bostock?
GENERAL PRELOGAR: No, I’m not suggesting that. But, Justice Gorsuch, I know you asked me to put to the side that --
JUSTICE GORSUCH: I did.
GENERAL PRELOGAR: -- the Court has already resolved this issue. I just would emphasize that –

JUSTICE GORSUCH: All right. You’re
going to go back to that. Okay.
GENERAL PRELOGAR: -- we’re talking about a statute here, statutory stare decisis considerations have their greatest force.
Congress has never overturned this Court’s interpretation of Title VI. Petitioners aren’t asking this Court to revisit its interpretation of Title VI --
JUSTICE GORSUCH: On the text, though, do you have anything else?
GENERAL PRELOGAR: I would point to the ambiguity in the term “discrimination.”
JUSTICE GORSUCH: Okay. But it’s not ambiguous in Title VII?
GENERAL PRELOGAR: No, and we respect this Court’s decision in Bostock.
JUSTICE GORSUCH: It’s just ambiguous in Title VI, the same word?”¹⁶

While Bostock interpreted Title VII, Title VI has nearly identical language to Title XI.

Title VI provides “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”¹⁷ This plain language prohibits educational institutions from discriminating on the basis of race if they receive federal assistance (as nearly all universities, both public and private, do).¹⁸

Compare Title VI to Title XI, which provides in pertinent part, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”.¹⁹ This law is virtually the same as Title VI except it prohibits discrimination on the basis of sex instead of discrimination on the basis of race, color, and national origin.

The position of the Biden Administration is that Bostock’s interpretation of Title VII applies squarely to Title XI to prohibit all sexual orientation and gender identity discrimination. Bostock is the root of their legal arguments in especially controversial areas like sex segregation in public locker rooms, professional and college sports teams, and prisons.

In the above-exchange with Justice Gorsuch, the Solicitor General for the Biden Administration argued in open court that “discrimination” meant something different in Title VI than it meant in Title VII. But Justice Gorsuch, perhaps resembling Tyler Perry’s character of Madea while dividing marital assets with a chainsaw²⁰ or moving another’s car with a commercial fork lift,²¹ pointed out that this argument is in complete contradiction to the numerous policy edicts and legal arguments of the Biden Administration.

The Biden Administration’s position is that Bostock’s interpretation applies in all other civil rights statutes. But in the affirmative action cases, the Biden Administration argues for a legal interpretation in the case that contradicts Bostock.

It begs the question. Why should one civil rights statute be interpreted so literally as to require legal conclusions that the drafters of the law could never have envisioned, while a different civil rights statute should be interpreted to take Congressional intent and purpose into account?

Whether Bostock applies to Title VI (or any of the other civil rights statutes) is an open question. However, Bostock applies to Title VII. And the doctrines established by Bostock place DEI programs in legal jeopardy.

Now, how is that?

Title VII provides:

1. “It shall be an unlawful employment practice for an employer—to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”²²

2. “It shall be an unlawful employment practice for an employer - to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”²³

3. “It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”²⁴

In Bostock, the Court interpreted Title VII’s prohibition on the basis of sex, but as the reader can see highlighted, the provision banning discrimination on the basis of sex is the very same provision that bans discrimination on the basis of race. The reasoning of Bostock and its outcome proves critical for why it changes Title VII analysis.

Bostock’s Extraordinary Conclusion About Title VII

Many critics of Bostock would argue that (1) biological sex is real, (2) sexual orientation discrimination and gender identity discrimination is fundamentally different and distinct from sex discrimination, and (3) Congress never intended to prohibit sexual orientation discrimination and gender identity discrimination in enacting Title VII.

However, Bostock agreed with all three of these premises. The Court made clear that the term “sex” in Title VII refers to biological sex.²⁵ Further, the Court acknowledged that sexual orientation discrimination and gender identity discrimination are inherently distinct and different from sex discrimination.²⁶ And the Court even agreed that Congress probably had no intention of prohibiting discrimination on these bases in 1964.²⁷

The greatest objection to the outcome in Bostock is that textually, Title VII does not specifically include sexual orientation or gender identity as prohibited categories of discrimination.²⁸ Only by reading the terms of Title VII in the most literal sense could the Court reach the result that it prohibits sexual orientation and gender identity discrimination.²⁹

Truthfully, as much as I like the policy outcome of Bostock, the ordinary meaning of discrimination on the basis of sex does not include discrimination on the basis of sexual orientation and gender identity.³⁰ Interpreting Title VII in an ordinary way would preclude Bostock’s interpretation.³¹ Sexual orientation discrimination and gender identity discrimination are not a form of sex discrimination.³²

The strongest argument made against the Court’s ruling in Bostock is Justice Brett Kavanaugh’s in dissent:

“Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of the other—as the majority opinion does—misapprehends common language, human psychology, and real life.”³³

That makes perfect sense. And it has solid legal precedent backing it. In a landmark 1979 opinion, the California Supreme Court bucked the judiciary by holding that sexual orientation discrimination against gay and lesbian employees of a public utility violated the California Constitution’s Equal Protection Clause.³⁴ In that same decision, though, the Court rejected the argument that the state’s employment non-discrimination law, which banned discrimination on the basis of sex, banned sexual orientation discrimination as a form of sex discrimination.³⁵

In the landmark decision striking down the same-sex marriage ban, the California Supreme Court directly rejected the argument that same-sex marriage bans discriminated on the basis of sex.³⁶ The fact that a statute categorically prohibits men from doing something that women can do and prohibits women from doing something that men can do does not, in and of itself, constitute sex discrimination.³⁷ And those sex-based restrictions, when equally applied, do not serve as a basis for invalidating laws on the basis of sex discrimination.³⁸

Simply put, sexual orientation discrimination and gender identity discrimination are not sex discrimination.³⁹

Moreover, an honest discussion of the state of LGBT rights in 1964 (and far beyond), as Justice Samuel Alito detailed in his dissent in Bostock, reveals the purpose of Title VII was clearly not to protect LGBT people.⁴⁰ In 1964, being gay or lesbian was considered a mental illness.⁴¹ Consensual sex between gay people was illegal in 49 states.⁴² The constitutionality of those laws (upheld by the Supreme Court in 1986) prohibited the recognition of equal protection rights for gay and lesbian people.⁴³

In 1964, immigrants would be deported for being gay, with homosexuality considered a “psychopathic personality”.⁴⁴ Once outed, gays and lesbians were fired from jobs.⁴⁵ Gays and lesbians could have their professional licenses revoked upon discovery of their sexual orientation.⁴⁶ Gays and lesbians had inheritances from them stolen away by courts under fraudulent and homophobic theories.⁴⁷ Labeling someone as gay or lesbian was grounds for defamation lawsuits.⁴⁸

Gays and lesbians could not be hired as school teachers and would be fired if outed.⁴⁹ Gays and lesbians were excluded from military service, dishonorably discharged upon discovery.⁵⁰ Gays and lesbians were denied security clearances and discovery of one’s sexual orientation would lead to the revocation of those security clearances.⁵¹ Gays and lesbians were fired from the FBI and CIA once outed.⁵² In family law, courts affirmed laws that restricted gays and lesbians from adopting children.⁵³

And these examples only scratch the surface of how LGBT Americans have long been treated as second-class citizens. Not until 2003 (almost 40 years after the enactment of Title VII), did the United States Supreme Court hold that gays and lesbians could not be criminally prosecuted for having consensual sex.⁵⁴ As noted law professor William Eskridge, an expert on gay rights, has noted, “the 1960’s was the dark ages for gay and lesbian Americans.” The Stonewall Riots, often credited as the start of the gay rights movement, did not occur until 1969, five years after the passage of Title VII.

It is thus abundantly clear that Congress had absolutely zero intent to protect LGBT people in enacting Title VII.⁵⁵ If Congress had known it might do so, some 56 years later, Congress probably would have inserted language to ensure the contrary outcome. And knowledge that the language would protect LGBT Americans in employment would have killed all prospects of passage of Title VII.⁵⁶

And incredibly, the majority in Bostock largely agreed with this frank assessment.⁵⁷

So then why did the Court rule in the way that it did in Bostock?

Quite simply, the fact that the employers intentionally discriminated on the basis of sexual orientation discrimination and gender identity discrimination are ultimately irrelevant as under Title VII, any discrimination that involves sex, touches upon sex, or turns on sex, is sex discrimination under the law even if it is conceptually distinct from sex discrimination.⁵⁸ Whatever Congress was thinking at the time of enactment of Title VII in 1964, it does not contradict the plain terms of the law.⁵⁹

Moreover, the fact that men and women are ultimately treated the same when an employer discriminates on the basis of sexual orientation or gender identity is irrelevant because, as the Court in Bostock repeatedly noted, Title VII protects individuals, not groups.⁶⁰ It does not matter if women are treated better than men overall or vice versa, when a woman brings a suit for sex discrimination or vice versa because Title VII “focuses on discrimination against individuals, not groups.”⁶¹

Since one’s biological sex is invariably used in discrimination on the basis of sexual orientation and gender identity, the language of Title VII prohibits that discrimination as sex discrimination.⁶²

Maybe the conclusion is crazy, but no matter, as far as Justice Gorsuch and the majority were concerned, case closed.⁶³

Bostock’s Relevance to DEI Programs

While there are many arguments offered for why DEI programs are legal under Title VII, Bostock foreclosed all of them.

Let’s review these arguments.

1.       DEI programs are not discriminatory but merely empowerment programs for those who are considered “underrepresented minorities”, thus not violating Title VII.

In Bostock, the Court held that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.”⁶⁴ “Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal . . .”.⁶⁵

As the Court explained, “conversational conventions do not control Title VII’s legal analysis”.⁶⁶ The definition of discrimination under Title VII does not rely upon who discriminates and who is discriminated against but is simply defined by treating someone differently as compared to others.⁶⁷

DEI programs can be labeled however an employer would like to label them. But as Bostock holds, the labeling is irrelevant. All that matters is whether a program or policy discriminates on a prohibited basis. This makes DEI programs that discriminate on the basis of race or on the basis of sex illegal under Title VII.

2. Due to a lack of power and history, racism can never occur against white people (or those who are not white but “over-represented”) and sexism can never occur against men. Since Title VII prohibits racist discrimination and sexist discrimination and DEI programs, by definition, are not racist or sexist, they do not violate Title VII.

Perhaps most profoundly, Bostock held that Title VII did not prohibit sexist discrimination, explaining “contentions about what the employers think the law was meant to do, or should do, [do not] allow us to ignore the law as it is.”⁶⁸ As the Court advised, “Congress could have written the law differently.”⁶⁹

“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.”⁷⁰

While some would argue DEI programs with race-based hiring preferences are “racist” and DEI programs with gender-based hiring preferences are “sexist”, many, including myself, would strongly disagree.⁷¹

However, Bostock has made that distinction irrelevant. Because just like Title VII does not ban sexist discrimination, Title VII does not ban racist discrimination. Instead, Title VII bans discrimination on the basis of sex. Just like Title VII bans discrimination on the basis of race. Thus, DEI programs would not evade Title VII’s constraints simply because they are not racist or sexist programs.

3.       Discrimination against whites and in favor of underrepresented minorities was not the principal evil that Congress sought to prohibit when enacting Title VII.

Bostock rejected this argument, holding the intent and purpose of Title VII is ultimately irrelevant when its text is clear.⁷² Bostock held that while the protections against sexual orientation and gender identity discrimination were unforeseeable consequences in 1964, unforeseeable consequences or outcomes of a federally enacted statute do not alter whether the statute is applied.⁷³

The Court held that courts could not ignore the plain language of Title VII simply because of an unanticipated outcome.⁷⁴ As Bostock held, the meaning of Title VII has not changed since 1964, only the application of it, and that application must be enforced.⁷⁵

A key justification of DEI programs is that anti-discrimination laws like Title VII are designed to protect disadvantaged groups.⁷⁶ Perhaps Congress did not intend to protect white people (or people who are “over-represented”) or men who would not be specifically recruited, hired, and promoted on the basis of race or sex. But similarly, Congress did not intend to protect LGBT people either. Bostock stands for the principle that this Congressional intent is irrelevant for interpreting Title VII.

4.       DEI programs often only partially consider race as one factor of many when it comes to hiring and training programs. Therefore, as long as employers adhere to that standard, DEI programs are not illegal.

This argument is fairly popular because the United States Supreme Court has previously upheld the constitutionality of race-based affirmative action programs in public higher education admissions so long as race was one factor of many used for consideration in a wholistic manner.⁷⁷ However, the application of that doctrine has been under the Fourteenth Amendment Equal Protection Clause, not Title VII.⁷⁸

What’s the significance?

As the Court explained in Bostock, “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. Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision.”.⁷⁹ If an employer treats somebody differently based upon a factor prohibited by Title VII, even if there are other factors present, the employer violates Title VII.⁸⁰

Applying the rules laid down by Bostock, even if race is only one factor of many that are considered in a DEI program, the DEI program still runs afoul of Title VII. Why? Because while sex could just be one factor of many considered by an employer in discriminating against someone on the basis of sexual orientation and gender identity, it is just as much prohibited by Title VII.

5.       DEI programs are permissible under Title VII because they are not motivated by animus against white people or men.

The actions challenged in Bostock were not due to animus against women or even men.⁸¹ However, the Court found it irrelevant for purposes of deciding the case, holding that direct animus against women or men was not required to run afoul of Title VII.⁸² Even if an employer has no animus and holds a different intent, as long as they intend to discriminate on the basis of a prohibited category, they violate Title VII.⁸³ When a discriminatory purpose is enacted, it is illegal, regardless of whether there is animus against the person discriminated against.⁸⁴

Most DEI programs are not implemented with any animus against those who are discriminated against.⁸⁵ Anecdotally, many of the loudest and most strident supporters and implementers of DEI programs in the corporate world appear to be white people.

In California, I have noticed that most of the elected officials who talk about the need to fix “under-representation” of race or gender in the workforce are all, with a handful of exceptions, white politicians, mostly men, who all defeated non-white women, white women, or non-white men to win election to their office. Certainly, it’s doubtful that those elected officials hold animus against themselves.⁸⁶

But Bostock makes clear that whether there is a presence of animus does not factor in whether an employer violates Title VII. That’s because one does not have to have animus on the basis of sex to discriminate on the basis of sexual orientation or gender identity, yet still would violate Title VII by doing so. Only the dissent in Bostock argued that sex discrimination under Title VII required an animus on the part of the employer.⁸⁷ Thus, a DEI program would still be illegal even if there’s no animus on the basis of race or sex.

6.       DEI programs are beneficial for society and good public policy, therefore falling into an exception under Title VII.

In Bostock, the Court made clear that it does not factor policy choices in its interpretation of Title VII in the face of clear language, writing:

“With that, the employers are left to abandon their concern for expected applications and fall back to the last line of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.”⁸⁸

As the Court reminded in Bostock, an employer cannot legally discriminate on the basis of sex even when the discrimination is premised on a desire to promote equity.⁸⁹ Justice Alito’s dissent predicted a long list of bad public policy results that could come from the ruling.⁹⁰ But the majority in Bostock considered those potential public policy problems and rejected the concept that public policy defeats the plain text of a statute.

There are many strong legal arguments that DEI programs are good public policy.⁹¹ They are implemented to remedy the effects of past societal discrimination that still lingers today.⁹² But as Bostock holds, those public policy arguments are irrelevant for the purposes of interpreting Title VII. Only the statutory text of the law matters.

7.       DEI programs are permissible because, on a whole, the companies that operate them may ultimately treat white men better overall.

Bostock rejected this argument, holding that Title VII focuses on the treatment of individuals, not groups.⁹³ Therefore, it makes no difference to look at how a group is treated overall for the purposes of evaluating whether discrimination is illegal under Title VII.⁹⁴ The Court considered the argument that Title VII prohibited categorical group discrimination on the basis of sex.⁹⁵

Under that definition of discrimination, DEI programs would not be illegal because they ultimately help ensure equality overall.⁹⁶ And in some cases, Justices have argued that DEI programs are legal under Title VII to prevent discrimination lawsuits under Title VII when the percentage imbalances between races or genders suggests actionable discrimination.⁹⁷ However, Bostock flatly rejected that interpretation of Title VII, holding that Title VII applies protections to individuals, not groups.⁹⁸

“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.”⁹⁹

One of the longstanding criticisms of both DEI programs and affirmative action programs is that they favor principles of group representation over that of the individual.¹⁰⁰ It is how supporters of DEI programs have interpreted Title VII - as a protection for groups.¹⁰¹ However, Bostock went out of its way to repeatedly emphasize that Title VII protects individuals, not groups.

• “[Title VII] tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups”¹⁰²

• “The consequences of the law’s focus on individuals rather than groups are anything but academic.”¹⁰³

• “Even so, the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals.”¹⁰⁴

• “But as should be clear by now, the statute focuses on discrimination against individuals, not groups.”¹⁰⁵

• “While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken.”¹⁰⁶

• “Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups”¹⁰⁷

If Title VII only cares about the individual, and not groups, as Bostock so forcefully holds, then it is irrelevant that DEI programs discriminate against those who are favored overall by a company. DEI programs discriminate against individuals, which is what Title VII outlaws.

8.       Because Congress has never taken steps to explicitly outlaw DEI programs, it should be accepted that DEI programs are legal under Title VII.

This argument is also precluded by Bostock. Here, the employers and dissents argued that Congress had repeatedly taken up legislation to add the categories of “sexual orientation” and “gender identity” to the 1964 Civil Rights Act.¹⁰⁸ But the Court squarely rejected the argument, dismissing it as speculative and dangerous.¹⁰⁹ “This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”¹¹⁰

Thus, the fact that Congress has never explicitly outlawed DEI programs does not mean Title VII does not legally prohibit them. Bostock holds that Congress’s failure to subsequently amend a law in response to what others thought the law allowed does not mean that it had to.

9.       DEI programs are popular with Americans, so therefore, the discrimination should be legal under Title VII.

The Bostock Court rejected that argument as well, holding that “to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”¹¹¹

DEI programs could be popular. But that is irrelevant for determining whether Title VII has been violated. Bostock has held as much.

10.       Longstanding precedent allows the legal creation of DEI programs with preferential race and gender based hiring.

It should first be noted that the current Supreme Court has very little hesitation overturning precedents they personally dislike. But Bostock’s reasoning further undercuts this legal argument as well, even under normal circumstances.

After all, the first ten United States circuit court of appeals to consider whether Title VII prohibited sexual orientation discrimination held that it didn’t.¹¹² In all, 30 out of 30 federal judges who evaluated this claim held that Title VII did not prohibit sexual orientation discrimination.¹¹³

However, the Bostock majority noted several early interpretations of Title VII that do not conform with today’s interpretation of the law. “In the years immediately following Title VII’s passage, the EEOC officially opined that listing men’s positions and women’s positions separately in job postings was simply helpful rather than discriminatory.”¹¹⁴ “Some courts held that Title VII did not prevent an employer from firing an employee for refusing his sexual advances.”¹¹⁵

“And courts held that a policy against hiring mothers but not fathers of young children wasn’t discrimination because of sex.”¹¹⁶ As the Court rhetorically asked, “Would the employers have us undo every one of these unexpected applications too?”¹¹⁷ “Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time.”¹¹⁸

Bostock eagerly tossed aside decades of precedent that held that sexual orientation discrimination and gender identity discrimination did not constitute sex discrimination. Precedent that Congress had surely been aware of when repeatedly re-enacting Title VII. Congress was aware of the Court’s previous holdings on DEI programs. But, as demonstrated by Bostock, that’s irrelevant.

Conclusion

If the plain text of Title VII absolutely prohibits discrimination on the basis of race and sex regardless of Congressional intent or purpose, as Bostock holds, Title VII absolutely prohibits DEI programs. No legal argument can save them because had any of those legal arguments been applicable, the Court would have likely held that Title VII did not prohibit sexual orientation and gender identity discrimination.

Ultimately, whether Bostock is used to preclude DEI programs in the future is also an open question. Thus far, no one has brought lawsuits against DEI programs, claiming the applicability of Bostock. It may be due to the ideological makeup of the Court.

Bostock was decided on a 6-3 majority, with Chief Justice John Roberts, Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joining. Justice Samuel Alito, joined by Justice Clarence Thomas, dissented, as did Justice Brett Kavanaugh.

Justice Alito and Justice Thomas are both adamantly opposed to the use of any race preferences.¹¹⁹ To say that both Justices absolutely detest Bostock is probably an understatement.¹²⁰ It is not clear that either one of them would want to further extend a precedent they thought was wrongly decided. Justice Sotomayor has been a strong defender of race-based affirmative action programs in higher education.¹²¹ It’s not clear that she would agree to ending corporate DEI programs.

It’s also not clear where the other Justices would stand on this issue. Justice Kagan joined the majority in Bostock, has not participated in any of the Court’s affirmative action cases, but did join a majority opinion upholding a disparate impact claim under the Fair Housing Act of 1968 linked to previous interpretation of Title VII.¹²² Justice Kavanaugh dissented in Bostock but clearly didn’t detest the decision.¹²³ It is not clear how Justice Amy Comey Barrett and Justice Ketanji Brown Jackson, who joined the Court after Bostock, would rule.

Of course, United States Supreme Court Justices are under no legal obligation to be consistent in their rulings. Justice Gorsuch is a prime example.

Just last week, he wrote a concurring opinion lamenting the great loss of civil liberties under COVID-19 lockdown measures.¹²⁴ Yet he had no qualms joining with the five justice majority to green-light the ability of big government to stick its nose into the reproductive system of every woman in the country.¹²⁵ Justice Gorsuch wrote a concurring opinion calling for the overturning of the Insular cases, which he labels, rightly, as “racist”.¹²⁶ Yet he had no qualms joining with the five Justice majority to uphold Donald Trump’s racist Muslim Ban.¹²⁷

Nevertheless, the Supreme Court does not decide most cases. The holdings of their cases are relied upon by lower courts, legislative counsels, and administrative agencies across the country. Whether Bostock applies to all other civil rights statutes has not been decided by the Supreme Court but has been applied that way by the Biden Administration and many lower courts. A Supreme Court opinion is still good and binding law, regardless of who has authored or joined it.

If Bostock is raised in a Title VII challenge to a DEI program and the case’s key holding is consistently applied, the DEI program would be found illegal.

If that happens, it may be one of the biggest consequences of Bostock.

1. 140 S. Ct. 1731 (2020)(“Bostock”).

2. Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 490-491 (Cal. 1979)(“Although, as a semantic argument, the contention may have some appeal, we think, when viewed in terms of expressed intent, the Legislature, in proscribing discrimination on the basis of “sex,” did not contemplate discrimination against homosexuals. Title VII of the 1964 Civil Rights Act, the federal counterpart of the FEPA, contains an identical prohibition on employment discrimination on the basis of “sex”; the federal courts that have addressed the issue to date have all concluded that this prohibition does not encompass discrimination on the basis of sexual orientation or homosexuality.”).

3. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/ (“Under Bostock‘s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”).

4. Bostock, at 1778-1783 (Alito, J., dissenting).

5. Bostock, at 1783 (Alito, J., dissenting)(“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”).

6. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

7. https://www.newyorker.com/news/our-columnists/could-the-supreme-courts-landmark-lgbt-rights-decision-help-lead-to-the-dismantling-of-affirmative-action