Bostock: Un Caso di Discriminazione sul lavoro

Strictly speaking, Bostock is not a constitutional case. It is an employment law case: more precisely, one of discriminatory dismissal. Neil Gorsuch, who writes for the majority of the Roberts Courts, confines the issue to the interpretation of the Civil Rights Act (1964), without developing a real “constitutional argument.” From the perspective of legal reasoning, Bostock is an originalist decision. Both the majority opinion and the dissenting opinions of Samuel Alito and Brett Kavanaugh are attempts to reconstruct and apply the original meaning of the phrase “because of sex.” In this decision, several forms of originalism intertwin: there is clash between the textualist doctrine, on the one hand, and the doctrine of public meaning combined with intention-based arguments, on the other. But, in truth, the majority opinion's textualism seems to “hide” a dynamic and evolutionary interpretation that updates the original meaning of the Civil Rights Act to include sexual orientation in the protection against sex-based discriminations. When combined with other recent decisions, Bostock seems part of a broader strategy of the Roberts Court oriented towards the systematization of the federal law in the area of employment discrimination.