I’ve read a fair amount of commentary now, most of it very good, by constitutional legal scholars about the Supreme Court’s recent decision in Bostock v. Clayton County, Georgia. The decision is an umbrella one that covers not only the case Bostock v. Clayton County, Georgia but also some cases involving other employers.
All of the discussion, of course, is about whether employer discrimination against employees for being homosexual or transgender is constitutional. I’m not addressing that here.
The U.S. Constitution is not the last word in what’s right and wrong. Libertarians have something to say about this issue also, independent of the Constitution. Most libertarians I know believe that there are certain things governments should not do whether or not they’re constitutional.
What I find striking is that I’ve seen no discussion of a very relevant fact: in the case of Bostock v. Clayton County, Georgia, the employer doing the discriminating is a government entity.
Independent of the Constitution, government entities should not be allowed to discriminate on grounds of race, sexual preference, or anything else other than productivity.
Constitutional lawyers have their place in discussion of Supreme Court decisions. But there’s more to the case of Bostock and the government of Clayton County than a Supreme Court decision. Imagine there were no U.S. Constitution and no Supreme Court. A constitutional lawyer would have nothing to say qua constitutional lawyer. But libertarians qua libertarians would have something to say, namely, what I wrote above: government entities should not be allowed to discriminate on grounds of race, sexual preference, or anything else other than productivity.
READER COMMENTS
Philo
Jun 20 2020 at 2:05pm
“[G]overnment entities should not be allowed to discriminate on grounds of race, sexual preference, or anything else other than productivity.” But the “productivity” rule would allow a sort of back-door discrimination: if the other employees did not like working with a certain kind of person, someone of that kind would probably be less productive on the job. In fact, it is too narrow to refer to the other employees’ *aversion*; putting a woman into a formerly all-male military unit (for example) might provoke sexual tensions that detracted from productivity, though the men were free of gender-hostility.
William Connolley
Jun 20 2020 at 5:09pm
It wasn’t a constitutional question. It was an interpretation-of-a-law question.
Handle
Jun 20 2020 at 8:23pm
Right. It’s not Constitutional. I wrote a comment to that effect earlier, but it disappeared for some reason.
The question was whether the interpretation of the word ‘sex’ in Title VII of the Civil Rights Act should refer exclusively to biological sex or expanded such that it would also prohibit discrimination on the basis of eccentric SOGIs: Sexual Orientations and Gender Identities. The Constitutional question of how SOGIs are to be treated for the purpose of Equal Protection analysis under the 5th and 14th Amendments and what level of scrutiny is to be applied in which contexts is not yet totally clear.
“What I find striking is that I’ve seen no discussion of a very relevant fact: in the case of Bostock v. Clayton County, Georgia, the employer doing the discriminating is a government entity.”
The reason this is not part of the discussion is that there has been no final adjudication or showing that Clayton County actually discriminated against Bostock. The question was whether the County was even required to defend itself against such a charge, given that there was no statutory basis for the cause of action.
The County says it fired Bostock because he misspent public funds. Bostock tried to challenge the adverse employment action by claiming that the real reason was his homosexuality. What is more plausible, that (1) Democratic-leaning Clayton County (55/45 for Hillary Clinton in the 2016 election) was on an anti-gay witch-hunt trying to purge homosexuals as recently as 2013, or (2) Bostock claimed bigoted discrimination as an attempt at lawfare and counter-attack, in order to get his employer to back down? Which, as it happens, is not exactly a novel or rare legal strategy in employment matters.
Clayton county argued that it didn’t even have to answer the charge, because Title VII didn’t create a cause of action for the alleged discrimination, and so it should thus be dismissed summarily.
That’s kind of legalese, so let me explain with an example. Let’s say you thought you were fired because you were too tall. You sue under the Civil Rights Act, claiming discrimination, and asking for damages. Your employer could defend itself and explain why it really fired you for embezzlement and demonstrate the evidence and facts of the matter.
But it doesn’t even have to bother because the meta-claim – not whether you faced discrimination for height, but that the CRA even *creates* the right to sue for discrimination on the basis of height – is itself false. You may be disappointed and think that the CRA *should* have let you sue for such discrimination, but it didn’t, and the courts can’t entertain your claim because Congress never authorized them to do so.
“Independent of the Constitution, government entities should not be allowed to discriminate on grounds of race, sexual preference, or anything else other than productivity.”
Really? If the government establishes separate spaces for the sexes to include toilets, living quarters, changing areas, locker rooms, and so forth, that is undoubtedly discrimination, and it is undoubtedly typical practice in probably hundreds of thousands of such separated, government-owned spaces throughout the world. Illegal? Unconstitutional? Un-Libertarian? Should any government entity that requires employees to wear uniforms mandate different styles and standards of appearance for men and women, for instance, hair length standards for military personnel?
It seems like such a silly question to many people that it probably sounds like a bizarre hypothetical or trolling, but I assure you it is perfectly serious and the subject of current legal dispute and philosophical question, and one to which I am genuinely curious to read Henderson’s answer.
William Connolley
Jun 20 2020 at 5:32pm
However, I entirely agree with your point re the govt. I’m belatedly astonished that the supreme court didn’t consider, nor (as far as I can see either) any of the many commentaries on the case.
nobody.really
Jun 20 2020 at 7:55pm
I concur with Connolley. The decision in Bostock v. Clayton County, Georgia turned on the interpretation not of the Constitution, but of statute–specifically, the federal Civil Rights Act of 1964
At the risk of shifting the focus of this discussion entirely, let me ask: Under the majority’s decision, may I fire an employee for “acting gay”–that is, acting like Jack McFarland in Will & Grace?
The 1964 Civil Rights Act imposes liability for firing people “on account of … sex.” The majority found that if you fire women for behavior that you would not fire men for, that violates the act. Likewise, if you fire men for behavior you would not fire women for, that violates the act. However, I would regard Jack’s behavior to be odd, regardless of the gender of the person engaging in the behavior. (I have yet to think of a woman who acts like Jack; maybe Bette Midler’s stage persona?) Thus, under the rationale of the recent decision, “acting gay” would not seem to fall within the protections of the 1964 Act.
In short, it is unclear to me that employers who fire people for being LGBT are really firing them for their behavior; I sense they are firing them for a status.
(I won’t be offended if moderators regard this discussion as going too far afield of Henderson’s original post.)
John Hall
Jun 20 2020 at 8:27pm
The Atlanta Journal-Constitution reports the boss knew he was gay for ten years and he was fired for embezzlement. I don’t know about the other cases that were merged though.
https://www.ajc.com/news/local/opinion-villain-clayton-gay-worker-rights-case-has-plenty-say/2lKxsOrNZ3W3S099cAxpgO/
Robert Schadler
Jun 21 2020 at 12:39pm
“Productivity alone” is too narrow or too shallow a criterion.
It presumes future productivity can be clearly predicted; obviously, it cannot, at least in more complicated situations.
Productivity means very different things. Working on an assembly line, working in sales, running a company — are very different jobs. Sales, more than an assembly line, requires appealing to customers. How you act and how you appear may affect sales: e.g. wearing an Apple shirt or cap when selling Samsung smart phones. Kneeling or wearing political symbols while playing football, may affect ticket sales. Trying to infiltrate a terrorist group — whether German, Syrian or Kenyan — may even mean skin color is relevant.
And, if one leaves the arena of government employment, who determines future productivity? The employer? Others?
Finally, “productivity” may not be the only purpose someone has in building a business. At least some of those motivations should be allowable. A “family business” may want to preference members of the family over others. A beauty salon may prefer people who exemplify popular views of beauty. A business focus on black heritage might prefer black employees.
Hard to imagine the Framers, as practical men, would have wanted to preclude all of these possibilities.
Phil H
Jun 21 2020 at 8:28pm
This is a part of libertarian theory that I don’t know much about.
“government entities should not be allowed to…”
I would have thought that one possible aim for libertarians would be to narrow the gap between government and the private sector. Setting up separate systems of rules specifically for government bodies seems antithetical to that. So I’m not convinced of the value of a rule like this within a libertarian framework.
nobody.really
Jun 21 2020 at 10:43pm
I have encountered various flavors of libertarianism, but I don’t know of a flavor that seeks to narrow the gap between government and the private sector. To the contrary, I think of libertarians trying to reduce constraints of private enterprises (to leave individual discretion unfettered to the maximum extent), while constraining government to the greatest extent consistent with the objective of fulfilling appropriate governmental functions (again, to leave individual discretion unfettered to the maximum extent). There is much dispute about what those “appropriate governmental functions” are, but less dispute about the goal of constraining governmental actions that exceed those functions.
IronSig
Jun 22 2020 at 4:35pm
I’m pretty sure that I’ve never encountered a line of libertarian thinking that proposed to make the legal constraints on private and state entities near-similar, verging on identical.
We can approximate the nature of the State is a monopoly holder of violence that becomes a tool of the people through some “Social Contract,” but good luck finding your name on the paperwork! What that approximate description misses is the fact that some people haven’t been born who’d consent, some people don’t consent right now but don’t want to get persecuted, and some people will remove their consent in the future. This lack is glaring when you look at corporate bodies like partnership businesses and social clubs like the Elks or Odd Fellows, where the existence of consent to group action tends to be provable for every member. The difference can incite claims of an illegitimate state.
The prevalent solution to missing consent, to the wronged dogs who haven’t barked yet, is to include a constitution to take some of the State’s possible actions, including what it can compel of its supposed masters, off the table. As Supreme Court Justice Robert Jackson would have said, the security of both explicit rights and a more vague liberty actually makes the Bill of Rights, amendments which no living American voted for, the most democratic part of the Constitution.
But to defend your freedoms, you must emulate Frederick Douglass and “Agitate, agitate, agitate!”
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