In a 6-3 opinion delivered by Justice Neil Gorsuch, the United States Supreme Court in Bostock v. Clayton County interpreted Title VII of The Federal Civil Rights Act of 1964 to prohibit discrimination in the workplace because an individual is homosexual or transgender. On its surface, the decision was a surprise for many reasons.  

Conservative justices hold a majority on the court, so many predicted that President Trump's two conservative appointments would generally produce more conservative leaning decisions in civil rights cases. And Justice Gorsuch, who delivered the opinion and replaced the late Justice Antonin Scalia, believes in textualism, which means that the law should be interpreted literally without any examination of its purpose or legislative history. Thus, many observers were shocked that Justice Gorsuch joined conservative Chief Justice John Roberts and the four liberal justices.

The case seemed to directly implicate the politically sensitive definition of "sex" in Title VII, which the court, for purposes of its opinion, assumed means "biological distinctions between male and female." Thus, most believed that Justice Gorsuch's adherence to textualism meant he would not agree to extend protections in Title VII to homosexual or transgender individuals. However, a careful examination of the decision reveals that Justice Gorsuch has not suddenly veered to the left, and that the court did not redefine the meaning of "sex" in Title VII.

Justice Gorsuch merely applied textualism to the "because of" language in Title VII. A hypothetical in the court's opinion provides a clear explanation: "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." Thus, the court did not need delve into a politically charged discussion of the definition of "sex"; it merely held that you cannot make employment-related decisions based on an individual's sex, which the court said you cannot avoid when making decisions based on an individual's sexual orientation or identity.  

However, the court's opinion—in my opinion—served another purpose. It provided much needed relief that the highest level of the judicial branch is functioning properly. Justice Gorsuch delivered an opinion that undoubtably went against the tenets of the political machine and lobbyists who helped him to the court. That means our judiciary remains independent of politics, personal beliefs and outside pressure. In a time where our country and other political branches have resorted to political obstructionism and a semi-tribalistic view of us vs. them, it's a breath of fresh air.

Which serves as a segue to my final observation. The irony does not escape me that many believe it was obstructionism in the legislative branch that allowed Justice Gorsuch to join the court instead of former President Barack Obama's nominee Merrick Garland.

So, what does this all mean? As it turns out, not much for most New Jersey businesses and in-state employees. New Jersey's companion state law, the Law Against Discrimination, already prohibits workplace discrimination based upon "gender identity or expression" and "sexual orientation." N.J.S.A. 10:5-4. So, employers could already be liable in New Jersey under state law for engaging in discrimination outlawed in the Bostock decision. And, the Supreme Court decided the case 6 to 3, meaning that Justice Gorsuch's vote did not break a tie. However, the decision does serve as a reminder of the many complicated and sensitive issues employers and employees face daily in the ever-evolving fields of employment law and civil rights.  

Eric H. Lubin is a partner with Lomurro, Munson, Comer, Brown and Schottland in Freehold, and the chair of the firm's employment law and commercial litigation department. He represents both employers and employees.