People For the American Way

Confirmed Judges, Confirmed Fears: Two Trump judges keep the door open for anti-gay job discrimination

News and Analysis
Confirmed Judges, Confirmed Fears: Two Trump judges keep the door open for anti-gay job discrimination

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In July 2018, with the help of two Trump judges, the Eleventh Circuit issued a ruling against LGBTQ equality that perfectly demonstrates the far right’s vision of the federal courts as a place where ideology trumps the law and where the promise of equality goes to die. In Bostock v. Clayton County Board of Commissioners, the majority turned away the legal claim of Gerald Lynn Bostock, an employee who had been discriminated against due to his sexual orientation. In refusing to even consider Bostock’s argument that this constituted unlawful sex discrimination under Title VII, the court had to ignore one of the Supreme Court’s most important Title VII precedents.

Back in 1979, the Eleventh Circuit ruled in Blum v. Gulf Oil that sexual orientation discrimination isn’t covered by Title VII. But that conclusion was completely undercut by the Supreme Court a decade later in a seminal 1989 case called Price Waterhouse v. Hopkins, which established that employment actions based on sex stereotypes constitute prohibited sex discrimination under Title VII. When a three-judge circuit panel recently claimed it was still bound by the older circuit precedent until the circuit en banc reanalyzed it under Price Waterhouse, a judge sought exactly that much-needed en banc review.

Trump judges Kevin Newsom and Lisa Branch voted against review, and their position carried the day over a powerful dissent by Obama nominee Robin Rosenbaum (joined by another Obama nominee, Jill Pryor).

In 2011, about 8 million Americans identified as lesbian, gay, or bisexual. Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations. That’s a whole lot of people potentially affected by this issue.

Yet rather than address this objectively en-bancworthy issue, we instead cling to a 39-year-old precedent that was decided ten years before Price Waterhouse v. Hopkins, the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion of Blum. Worse still, Blum’s “analysis” of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, “Discharge for homosexuality is not prohibited by Title VII.”

Rosenbaum observed that regardless of how a judge comes out on the substantive legal question, the court owes it to the public to analyze the impact of a major Supreme Court case on the older circuit precedent.

I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people.

Bostock v. Clayton County Board of Commissioners is one among several appellate court decisions with a certiorari petition before the Supreme Court concerning whether Title VII prohibits discrimination based on sexual orientation. If the Supreme Court agrees to consider the issue, the legitimacy of any 5-4 ruling with the corruptly confirmed Justice Kavanaugh in the majority could be seriously questioned.