Bostock v. Clayton County, Georgia: Another Development in the LGBTQ Rights Journey

Bostock v. Clayton County, Georgia: Another Development in the LGBTQ Rights Journey

On June 15, 2020, the United States Supreme Court delivered a landmark opinion recognizing basic critical protections for the rights of gays, lesbians, and transgendered individuals in the workplace based on the text of Title VII of the Civil Rights Act of 1964.  Three employees brought separate lawsuits against their respective employers under Title VII for unlawful discrimination on the basis of sex, and all three employers fired the employees allegedly for no reason other than the employees’ homosexuality or transgender status.[1]  The resulting circuit-split issue reached the high court in Bostock v. Clayton County, Georgia and culminated in what appears to be a victory for the LGBTQ community as a whole.  At the very least, this opinion marks a pivotal turn on America’s civil rights journey.

The controversial issue before the Court was whether an employer’s decision to fire its employee on the basis of that employee’s sexuality or transgender status violates Title VII.  In answering this monumental question, the Court did not hold that LGBTQ status constitutes a protected class.  Rather, in a surprising 6-3 majority opinion, the Court applied logical reasoning and textualism to conclude that the protection already exists within the statutory language of Title VII. 

The Court’s syllogism is simple: discrimination based on an individual’s gay or transgender status necessarily entails discrimination on the basis of sex.  Consider the Court’s hypothetical:

“Imagine an employer who has a policy of firing any employee known to be homosexual.  The employer hosts an office holiday party and invites employees to bring their spouses.  A model employee arrives and introduces a manager to Susan, the employee’s wife.  Will that employee be fired?  If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.  To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation.  But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on the individual’s sex.”

Discrimination on the basis of an individual’s sex is a well-established violation.

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”  42 U. S. C. §2000e–2(a)(1).

The Court logically concludes that “[a]n 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.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”  In other words, an employer’s decision to fire its employee on the basis of that employee’s homosexuality or transgender status violates Title VII.

What does this mean for LGBTQ rights in the grand scheme of civil rights issues?  The opinion certainly establishes the argument to further recognize protections for an individual’s LGBTQ status where sex is a protected characteristic.  But the Court overtly points to another constitutional right that could potentially erode the breadth of this opinion’s LGBTQ protections or provide a defense to discrimination suits for some employers.  In the last several paragraphs of the opinion, Justice Gorsuch suggests that employers may raise religious liberty arguments—the effects of which are yet to be determined but could potentially exempt employers from Title VII’s commands on First Amendment grounds.  We will undoubtedly see religious freedom arguments intersect with LGBTQ rights in the future.

Employers in states like California have already been subject to state and local laws prohibiting employment discrimination on the basis of sexuality.  This decision means that employers must be aware of an additional layer of anti-discrimination protection their employees enjoy—it is now unequivocally illegal under federal law for an employer to discriminate against employees on the basis of their sexuality or transgender status.

[1] Clayton County, Georgia fired Gerald Bostock after he participated in a gay recreational softball league, Altitude Express fired Donald Zarda after he revealed that he was gay, and R. G. & G. R. Harris Funeral Homes fired Aimee Stevens, who initially presented herself as a man, after she revealed intentions to present as a woman. 

Elizabeth Quach

Elizabeth Quach is an associate with Brown White & Osborn LLP. She handles a wide range of civil and criminal litigation in both state and federal court, with a particular focus on business litigation and white collar defense.
Elizabeth Quach