USA Law and Practice Contributed by: Michael G. Congiu and Gillian Gilbert, Littler
making in the USA, is not enough to support a domestic application of the ATS; and • nearly all alleged conduct aiding and abetting
under Title VII of the Civil Rights Act of 1964. The district court dismissed the claim, holding that Title VII did not extend to discrimination based on sexual orientation, and the Eleventh Circuit affirmed. In contrast, two other federal appellate courts reached the opposite conclusion in similar cas - es. In one, Donald Zarda, a skydiving instructor, was fired shortly after disclosing that he was gay. In another, Aimee Stephens, who had worked for years at a funeral home while presenting as male, was dismissed after informing her employer of her intention to live and work as a transgender woman. The Second and Sixth Circuits, respec - tively, held that Title VII prohibits employment discrimination based on sexual orientation and gender identity. To resolve the circuit split, the U.S. Supreme Court consolidated the three cases and granted certiorari to determine whether Title VII’s prohibi - tion on sex-based discrimination encompasses discrimination based on sexual orientation and gender identity. Legal issue Does Title VII’s prohibition on discrimination “because of sex” include discrimination based on sexual orientation and gender identity? Supreme Court holding Yes. In a 6–3 decision, the Court held that an employer who fires an individual merely for being gay or transgender violates Title VII. Majority opinion (Justice Gorsuch) • The Court applied a textualist approach, focusing on the ordinary public meaning of the statute’s language in 1964. • It concluded that discrimination based on sexual orientation or gender identity neces -
forced labour occurred abroad. Majority opinion (Justice Thomas)
The Court reversed the Ninth Circuit’s deci - sion, stating that the plaintiffs did not plead a proper domestic application of the ATS. Further - more, the Court declined to create a new cause of action under the ATS, reaffirming that such authority lies with Congress, not the judiciary. Concurring opinions • Justice Gorsuch (joined in part by Justices Alito and Kavanaugh) argued that courts should not create new causes of action under the ATS and that corporations should not be immune from suit under the statute. • Justice Sotomayor (joined by Justices Breyer and Kagan) agreed with the judgment but defended the continued viability of judicially recognising causes of action under the ATS for well-established international norms. Dissent (Justice Alito) • Justice Alito argued that the Court should have addressed whether domestic corpora - tions can be held liable under the ATS and criticised the majority for avoiding this central question. Bostock v. Clayton County, Georgia 140 S. Ct. Gerald Bostock, the plaintiff, served for a dec - ade as a child welfare advocate for Clayton County, Georgia. After he began participating in a gay recreational softball league, the county ter - minated his employment, citing conduct “unbe- coming” of a county employee. Bostock filed suit in federal court, alleging sex discrimination 1731 (2020) Background
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