Gorsuch and Dissenting Opinions in Bostock Creative Writing

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DiscriminationFactsIn Bostock v. Clayton County, the U.S. Supreme Court considered whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation or gender identity. The case originated in a lawsuit by Bostock, who claimed that he was unlawfully fired from his job in Georgia after promoting a gay softball club. At the time, Georgia had no law protecting workers’ right based on sexual orientation. Bostock claimed his Title VII rights under the Civil Rights Act were violated by his company, which did not approve of his sexual orientation. The District Court of Georgia ruled against Bostock by ruling that Title VII did not protect against discrimination based on sexual orientation but only against discrimination based on sex.[footnoteRef:2] Bostock appealed the case, which eventually ended at the Supreme Court. Gorsuch wrote the majority opinion ruling in favor of Bostock, saying that Title VII did indeed protect against discrimination based on sexual orientation. [2: Court of Appeals, https://media.ca11.uscourts.gov/opinions/unpub/files/201713801.pdf]DecisionThe court ultimately ruled that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination, and therefore covered by Title VII. The ruling was a major victory for LGBTQ+ rights, and helped to ensure that employees would be protected from discrimination regardless of their sexual orientation or gender identity. However, the ruling also left some unanswered questions, such as whether Title VII protects against discrimination based on transgender status. Nevertheless, the ruling was a landmark moment for LGBTQ+ equality, and helped to ensure that all employees would be treated fairly under the law.However, Alito, Thomas and Kavanaugh produced dissenting opinions, arguing that the decision amounted to legislation and was an abuse of the notion of separation of powers. The decision to read “sexual orientation” into Title VII of the Civil Rights Act was not lawful in their eyes and could not be reconciled with the legislation passed in 1964. In order for Bostock’s case to have merit, legislators would have to draft new legislation protecting his right against discrimination based on sexual orientation. That had not been done and could not be seen as evident in Title VII. Thus went the argument of the dissenting justices.[footnoteRef:3] [3: Josh Gerstein and Rebecca Rainey, “With LGBT Ruling, Supreme Court Hands Liberals a Surprise Victory,” https://www.politico.com/news/2020/06/15/supreme-court-lgbt-rights-decision-319693]The dissenting justices do have a point in their view, although Gorsuch was praised by some as adopting a textualist approach.[footnoteRef:4] The textualist approach to judicial law holds that the best way to interpret a legal text is to look at the plain meaning of the words used. This approach is based on the belief that the drafters of a legal text will have chosen their words carefully and that, as a result, the meaning of the text should be clear. This approach is often contrasted with the purposivist approach, which holds that a legal text should be interpreted in light of the purpose or intention of its drafters. Textualists also tend to reject the use of extrinsic evidence, such as legislative history, when interpreting a legal text. Instead, they believe that the meaning of a text can and should be determined without reference to any external sources.

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Proponents of the textualist approach maintain that it is more objective than other approaches and that it leads to greater certainty in the law. The fact of the matter is, however, that Alito, Thomas and Kavanaugh were much more the textualists, and Gorsuch was acting rather in the purposivist approach. [4: Josh Blackman, Justice Gorsuch’s Legal Philosophy, https://www.theatlantic.com/ideas/archive/2020/07/justice-gorsuch-textualism/614461/]In his decision, Gorsuch focused on how…

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…organizations have recognized the importance of diversity, inclusion, and sensitivity training for all employees. There are a variety of reasons why this type of training is important. First, it can help to create a more positive work environment. When employees feel that they are respected and their individual perspectives are valued, they are more likely to be productive and engaged in their work. Additionally, diversity, inclusion, and sensitivity training can help to prevent workplace conflict. By promoting an understanding of different perspectives and cultures, employees are more likely to respect and appreciate one another. Finally, this type of training can also help to build trust between employees and management. When employees feel that they are being treated fairly and with respect, they are more likely to trust those in positions of authority. In sum, there are many reasons why diversity, inclusion, and sensitivity training is important for all employees.ConclusionThe Bostock case showed the Court was willing to interpret Title VII to protect sexual orientation from discrimination. Dissenting justices ruled that Title VII did not actually protect from this and that if society wanted that protection it should turn to its legislators to get it. Aside from that point, the fact is that HR will from now on be expected to be more inclusive. So by creating a more positive work environment, preventing workplace conflict, and building trust between employees and management, inclusivity and diversity type of training can have a profound impact on an organization. The goal of HR management will have to be to find a way to maintain balance among workers who hold opposing beliefs. This may not be easy as society becomes more and more polarized. But it is hoped, expected and believed for now that by taking these steps, HR management could help create a….....

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