On June 15, 2020, the Supreme Court issued a historic ruling in Bostock v. Clayton County that protects gay, lesbian, and transgender workers from being discriminated against and terminated due to their sexual orientation. This decision is the most significant win for LGBTQ rights since Obergefell v. Hodges established the constitutional right to same-sex marriage in 2015. This most recent decision by the Supreme Court will extend protection to millions of workers nationwide and is a step in the right direction for LGBTQ equality.
The Supreme Court ruled that Title VII of the 1964 Civil Rights Act, which bans discrimination based on sex and other factors, also applies to gender identity and sexual orientation. The decision was 6-3; Chief Justice Roberts and Justice Gorsuch joined the liberal justices in the majority, with Justice Alito authoring the dissent. Justice Gorsuch wrote: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”. Before this decision, it was legal in 26 states to fire someone for being gay, lesbian, or transgender, but this decision upheld lower court rulings that said sexual orientation discrimination is a form of sex discrimination.
This case is not only a major victory for the LGBTQ community nationwide, but it was a long-awaited victory for the three plaintiffs that brought the case. Gerald Bostock and Donald Zarda brought lawsuits for discrimination when Bostock lost his job as a child welfare services coordinator and Zarda as a skydiving instructor for coming out as gay. This also marked the first time the Supreme Court has heard arguments for transgender civil rights. Aimee Stephens brought a discrimination lawsuit when she was terminated in 2013 after coming out to her coworkers as a transgender woman and being fired shortly after. Unfortunately, Stephens and Zarda passed away before they could see the outcome of their cases, but their courage to bring these cases have helped to usher in protections for millions of LGBTQ workers for years to come.
This case will also materially benefit the lives of thousands of workers who do not have any sort of current protection, such as all federal government workers and for individuals who work in states that have not provided specific protections for gay, lesbian, and transgender people. This new protected class of workers will now be able to bring Title VII claims for discrimination if they are discriminated due to their sexual orientation or gender identity and will be able to improve their own working conditions. This decision may also make people in the LGBTQ community more comfortable with being themselves in the workplace without fear of retaliation.
Although this is a major victory for LGBTQ rights and one that should rightfully be celebrated, the fight for true equality is not over yet. For workers who want to bring a Title VII claim for discrimination based on their sexual orientation or gender identity, it can be an uphill battle proving the discrimination in court. For workers who are “at will” employees, employers can terminate their employment for any reason and conceal the true reason for terminating a worker if there is any suspicion of discrimination. However, this ruling is still a important decision that will positively affect the lives of thousands of workers who previously did not have any protection under the law from discrimination in the workplace, particularly workers in rural or deep red areas. The Supreme Court also concluded that it makes no difference under the text of Title VII whether an employer intended to discriminate based on an additional reason, if sex is the basis for the decision.
This decision also comes right after the Trump administration opted to end protections for transgender patients from discrimination by doctors, hospitals, and health insurance companies. Since that policy and other policies that are intended to strip transgender people of basic protections are based on the Trump Administration’s narrow definition of sex, those policies are vulnerable to being overturned due to the Supreme Court’s new ruling.
While this is an important milestone for LGBTQ rights, more work needs to be done to ensure that people in the LGBTQ community are protected from discrimination generally, not only in the workplace. Expanding protections for at-will employees and passing the Equal Rights Act would be substantial steps taken to address discrimination on the basis of gender identity and sexual orientation. The Equality Act would provide protections for LGBTQ people across key areas in life including employment, housing, education, and more. The bi-partisan act was passed by the House of Representatives on May 17, 2019 and has gained the support of 286 major companies in the United States, but has not been acted upon by the Senate. The Bostock ruling is an important victory for LGBTQ civil rights.
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This Wandro & Associates Update is intended to inform firm clients and friends about legal developments, including recent decisions of various courts and administrative bodies. Nothing in this Practice Update should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this Update without seeking the advice of legal counsel.