IN THE PUBLIC EYE

U.S. Supreme Court Hands Down Landmark Decision In Area of Employment Discrimination

Author: Alliant

 

On June 15, 2020, the United States Supreme Court issued its opinion in a landmark civil rights case involving the rights of gay and transgender persons in their employment.  The case, Bostock v. Clayton County, Georgia, decided on a 6-3 vote, interpreted Title VII of the Civil Rights Act of 1964 prohibiting discrimination in the workplace because of an individual’s sex to include a prohibition against discrimination against gay, bisexual and transgender employees.  Prior to the decision, it was legal in more than ½ of the states in the country to fire workers for their sexual orientation and gender identity.  The case builds on the expansion of gay rights in the 2015 decision of the Court holding that there is a constitutional right to same-sex marriage, though this case is based on an interpretation of the language of a federal statute and is not based on a constitutional right.  The Bostock decision has the potential to be much more far reaching and to affect many more people than the 2015 case, however.

 

Prior to the recent decision, many employers in the country were moving toward a nondiscrimination policy on the basis of sexual orientation and gender identity either on a voluntary basis or prompted by state laws, several recent EEOC rulings and federal appellate court rulings adopting the EEOC position.  (In fact, 200 corporations including Google, Facebook, Hilton, Nike and the Walt Disney Company, submitted an amicus curiae brief to the Court in support of the plaintiffs in the Bostock case).  However, these corporate policies were not supported by an enforceable, final court decision and were largely conditioned on corporate calculations about culture and cost/benefit calculations.  With this decision, there is now a recognized and enforceable federal right to be free from workplace discrimination for gay, bisexual and transgender workers.

 

The plaintiffs in the 3 cases decided by the Court included Gerald Bostock, a Clayton County, Georgia child welfare advocate for whose work the county had won several awards.  After a decade of employment by the county, Mr. Bostock began participating in a gay recreational softball league.  Soon influential members of the local community made disparaging remarks about Mr. Bostock‘s sexual orientation and his involvement with the league and he was fired for conduct “unbecoming” a county employee.  As Title VII applies to all employers, including those in the public sector, the Bostock case’s result is one that will impact hiring, firing and all aspects of daily life for employees of state and local governments.

 

The Court’s majority opinion, authored by Justice Gorsuch, was based on an interpretation of the specific language of Title VII. (§ 7, 42 U.S.C. § 2000e et seq (1964)).  According to the Court, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex….”  Consequently, according to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discrimination against that person based on sex.”  While the dissenting opinion argued that the Court’s decision failed to address questions about access to restrooms and locker rooms or how the ruling would affect sports, college housing, religious employers, health care or free speech, Justice Gorsuch wrote that the decision was a narrow one and did not purport to address those issues.  Accordingly, he wrote, “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justification under other provisions of Title VII are questions for future cases, not these.“ 

 

The ramifications of the Court’s decision in Bostock, while uncertain beyond the scope of the facts in the cases themselves, could be very broad, however.  In the majority opinion, Justice Gorsuch used language that is likely to apply to other areas of the law in which statutes contain language preventing discrimination “because of sex” or “on the basis of sex.”  The Bostock case’s dissenters recognized as much, noting that over 100 federal statutes prohibit discrimination because of sex.  Among the federal agencies whose policies could be affected by an expansive reading of the Bostock decision include the Departments of Education, Health and Human Services, Housing and Urban Development and the Pentagon.  It is also the case that prior to the Bostock decision, the current administration had issued a series of regulations ending protections for transgender citizens including employees of government contractors and transgender students’ right to use bathrooms or locker rooms corresponding with their gender identity.  It has been considering the adoption of polices allowing homeless shelters to consider biological sex in placement decisions.  Only days before the decision came down, the administration revoked requirements that doctors offer and insurers provide coverage for medically appropriate treatment for transgender patients.  These policies and regulations could be at risk since many are based on a particular definition of “sex.”  Either these policies and regulations will be changed in response to the Bostock decision or, more likely, future litigation will be required to settle these matters.

 

The Bostock case is perhaps more significant than the 2015 case on marriage equality since prior to Bostock, a gay person could marry one day and be fired the next.  In this way, the case is certainly a landmark decision.  In spite of that, it is important to recognize what Bostock does and does not mean.  Plaintiffs still lose most employment discrimination suits that are filed and that likely will not change.  However, the Bostock decision does mean that if a gay, bisexual or transgender person sues for employment discrimination based on their sexual status, then their ability to assert such a claim is no longer in doubt.  Thereafter, the suit will succeed or fail just as other sex discrimination cases do, on their merits.  In addition, many employment discrimination cases settle, so the value of such claims may be increased following the Bostock decision since a previous argument used to reduce their value based on the lack of clear Supreme Court precedent recognizing the viability of these claims is gone.