In its recent decision, authored by Justice Neil Gorsuch, Bostock v. Clayton County, 590 U.S. ____ (2020), the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, should now be read to also prohibit discrimination on the basis of sexual orientation and gender identity. Besides for the obvious objection to reading words into the statute that Congress did not put there and never intended, as the court itself admitted (stating that "those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result"), the decision will have very far-reaching unintended consequences that will have a profound impact on American society.

The court stated that "[t]he statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge." 590 U.S. ____ (2020), Slip Opinion, p. 9.

While the court confined its comments to cases in which an employer engages in unlawful discrimination whenever it fires or takes any adverse employment action against an employee because of his or her sexual orientation or gender identity, the reasoning stated by the court is that any adverse employment action taken against one employee for "traits or actions" that the employer allows and tolerates in another employee would constitute unlawful discrimination. In other words, just as an employer cannot fire one employee for being attracted to men (when the employee is a man) and at the same time not take action against another employee who is attracted to men (when the employee is a woman), so too any time an employer takes an adverse employment action against one employee for traits or actions that it allows in another employee, that would be considered "discrimination." "Traits or actions" is a general term that clearly can, and by the court's reasoning presumably should, be applied to many different attributes, not just sexual orientation or gender identity. A host of situations in which an employer discriminates against one employee for traits, attributes, actions, or other characteristics that it allows in other employees would be deemed to be unlawful discrimination that until now was permissible.