June 2020 (rev. 02/2021)
On June 15, 2020, the Supreme Court of the United States (“SCOTUS”) issued its ruling on Bostock v. Clayton County, 509 U.S. ___ (2020) establishing an unprecedented protection for LGBTQ people in the workplace by expanding the definition of Title VII of the Civil Rights Act of 1964. The employment protection states that it is unlawful for any employer to fail or to refuse to hire, or to discharge, any individual because of race, color, religion, sex, or national origin. Over the years, much debate emerged about whether “sex” more than merely meaning “the biological distinctions between a male and a female” included a protection against discrimination because of sexual orientation and sexual identity. Although SCOTUS ruled in 2015 that same-sex couples have a fundamental right to marry under the Constitution, without a specific prohibition for LGBTQ workplace discrimination, many states without such state-level prohibitions allowed similar discrimination to take place.
The opinion was delivered by Trump appointee Justice Gorsuch and it involved 3 individual plaintiff’s cases. The first, Gerald Bostock, worked as a child welfare advocate and was fired for conduct “unbecoming” of a county employee, after he began participating in a gay recreational softball league. The second, Donald Zarda, worked as a skydiving instructor in New York and was fired days after he mentioned that he was gay. And the third, Aimee Stephens, deceased, worked at a funeral home in Michigan where she first presented as male and two years later explained to her employer and colleagues that after taking her vacation, she planned to “live and work full-time as a woman.” The employer fired Stephens before she left.
In discussing the letter of the law, the Court examined not only the definition of “sex,” but also the implications in “because of” and “individual.” Concluding that an employer discriminates against a person in violation of Title VII if the employer “intentionally treats a person because of sex—such as by firing the person for attributes it would tolerate in an individual of another sex. Therefore, if a woman can like men and that is tolerated by the employer, then the employer must also tolerate a man who likes men and likewise for gender identity. The opinion leaves open many issues such as those regarding religious employers, which were identified but not addressed in this case. Justice Alito (joined by Justice Thomas) and Justice Kavanaugh issued dissenting opinions.
The Executive Orders issued by President Biden on January 20, 2021, included “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity of Sexual Orientation” citing the Bostock v. Clayton County case. The Order instructs federal government agencies to review policies and regulations and ensure these are consistent with the Bostock decision.
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