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Ken Garten: The Supreme Court offers a surprise, to some

Staff Writer
The Examiner
The Examiner

Under Title VII of the Civil Rights Act of 1964 it is unlawful for an employer to discriminate against “any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

This week our United States Supreme Court came down with a much-anticipated opinion that the term “sex” includes sexual orientation and transsexual status, and discrimination on those bases is likewise unlawful under Title VII.

And now many left-wing liberals are dancing in the political streets while many right-wing conservatives are fuming with cries of judicial betrayal.

My thoughts and observations:

• This was a 6-3 decision, with Republican appointees John Roberts and Neil Gorsuch, typically considered part of the conservative bloc on the court, joining with typically considered left-leaning Justices Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayer and Elena Kagan, in the majority. Justices Alito, Thomas and Kavanaugh dissented. Justice Gorsuch wrote the majority opinion.

• In each of the consolidated cases before the court, the employers admitted that they discharged the employees in question because of their sexual orientation or transgender status. In the words of Justice Gorsuch, “(s)orting out the true reason for an adverse employment decision is often a hard business, but none of that is at issue here.”

Typically, in employment discrimination cases, the disputed issue is what the true reasons for the adverse employment action were, due to a reason prohibited by the anti-discrimination legislation, such as race, color, religion, sex or national origin, or some other reason unrelated to that. Not here though. This the employers admitted.

• Score this a victory for the concept of the independence of the judicial branch. I believe this case demonstrates our justices are showing a well-reasoned commitment to the rule of law as they interpret it, and dispels the notion that Supreme Court justices are merely shills for the political leanings of one side or the other.

Meanwhile some political figures and commentators seem to be irritated that the justices are not shills for the left of the right, but are in fact independent thinkers whose reasoning and decision-making reflects a judicial temperament free of such considerations.

• Title VII of the Civil Rights Act of 1964 is a federal statute, and its application is limited to employers with 15 or more employees. Thus, small companies that do not reach that number are not covered by the law and this decision in most instances. Missouri does have its own anti-discrimination laws. Six or more employees are necessary for state law anti-discrimination claims. Time will tell on what this case means for state law claims, and smaller employers.

• It seems to me that the scope of the political victory for the proponents of civil rights and the defeat to disappointed conservatives is likely a lot more a matter of moral victory and defeat than it is of practical effect on the day to day lives of many. I mean, how many potential employers with 15 or more employees would legitimately put forth a true policy of employment discrimination against the LGBT world?

And how many of those claiming an ugly defeat for the business community and a glorious victory for freedom will be truly affected by this decision? It’s hard for me to believe the practical effect will exceed the political one.

• Such bigotry seems foreign to me, particularly in an environment in which again and again I hear that the biggest challenge for any employer in business today is finding good employees who want to work, are dependable and can be trusted.

To eliminate a whole class of potentially good employees in such an environment due to some bigoted attitude of intolerance over differences related to the very private issue of personal sexuality would seem a ridiculous handicap for any business to impose on itself. Still, we have laws on that. And they have been in the limelight of late.

Ken Garten is a Blue Springs attorney. Email him at