By Linda C. Ashar, J.D.
Faculty Member, School of Business, American Public University
This has been an extraordinary year legally on many fronts. On June 15, the U.S. Supreme Court issued landmark decisions for civil rights. In Bostock v. Clayton County, Georgia, the Court ruled by a 6-3 majority that LGBTQ+ employees are protected from employment discrimination under Title VII of the Civil Rights Act of 1964.
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Here is how the Court reached this decision: The Act prohibits employers, employment agencies, and labor organizations from engaging in practices that “discriminate against any individual because of his race, color, religion, sex, or national origin.” Bostock is an important case because prior court decisions in many jurisdictions had ruled that these employees were not protected by federal law. Thus, an employee fired for being gay had no legal recourse.
The Consolidated Bostock Cases Resolved the Inequity Issue
This inequity was resolved through consideration of three cases consolidated in Bostock. In all three cases, long-term employees were fired when their employers discovered they were homosexual or transgender.
In the leading case, Gerald Bostock was a child welfare advocate for Clayton County, Georgia. His award-winning 10-year leadership ended when he was fired for joining a recreational gay softball league. Clayton County considered this conduct “unbecoming” for a public employee.
Similarly, in a companion case, a funeral home employee of six years was fired after notifying the employer of the decision to become a transgender. In the third case, a skydiving instructor was fired after mentioning being gay. The employees sued for discrimination.
In two of the cases, the federal circuit courts ruled the employers had discriminated. In the third case, a federal circuit court ruled that the employer did not discriminate. The Supreme Court took the cases together to resolve the conflict in the circuit courts.
The Question Boiled Down to the Supreme Court’s Interpretation of ‘Sex’
The fundamental question for the Court was the meaning of a single word in the Act, “sex.” Arguing against discrimination by employers, advocates said that Congress clearly meant simply clear lines of “gender” in Title VII, as in only male versus female.
Rejecting this definition as too narrow an approach, the Court said that the Act talks about more than just male versus female. It prohibits discrimination “because of” sex. This distinction connotes a more complex, layered reasoning process about the characteristics of an individual.
A person’s identification of gender status or sexual preference cannot be dissociated from the meaning of “because of sex” in the statute. It is part of the whole individual, just as race, age, color, and other identifying characteristics that are protected by the Act.
To protect individual employees from unlawful discrimination under the Act, the Court explained in Bostock:
“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Bostock Ruling Makes It Illegal for Employers to Fire LGBTQ+ Employees Just for Being Gay or Transgender
Thus, Bostock’s landmark holding ruled: “An employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act. This decision has settled a tumultuous dispute in federal employment discrimination law.
Two important points are clarified in Bostock:
- Title VII of the Civil Rights Act of 1964 applies first and foremost to the rights and characteristics of individuals.
- LGBTQ+ persons are protected under the definition of “sex” in the Act.
LGBTQ+ employees who believe they have been subjected to discrimination because of sex should first exhaust in-house remedies, if they are available, with their employer’s human resources department. They should then seek the assistance of legal counsel or the Equal Employment Opportunity Commission. Other resources include the Equality Center and The Center.
About the Author
Linda C. Ashar is a full-time Associate Professor in the School of Business, American Public University, teaching undergraduate and graduate courses in business, law, and ethics. She obtained her Juris Doctor from the University of Akron School of Law. Her law practice spans more than 30 years and includes employment law and litigation on behalf of employers and employees.