We’ve got to hand it to the US Supreme Court. Last week the conservative-heavy bench handed down two important decisions that expand federal legal protections for LGBTQ+ workers and a subset of the immigrant community. (Although it also snuck in a win for developers towards permitting an oil pipeline underneath the Appalachian Trail in a Virginia national forest.)
This post gives a short overview of the Bostock v. Clayton County decision and considers implications for LGBTQ+ workers.
The Court found that employment discrimination based on “sex” includes sexual orientation and gender identity.
Last Monday, the Supreme Court decided 6-3 that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and gender identity. Title VII is a federal law that provides protection against employers’ discriminatory hiring, firing, or other treatment on the basis of “race, color, religion, sex, or national origin.” In each of the fact patterns of the consolidated cases before the Court, an employer allegedly fired someone for being homosexual or transgender.
In his analysis, Trump-appointee Justice Gorsuch, writing for the majority, emphasized the importance of ordinary public meaning in statutory interpretation. He reasoned that “sex” ordinarily refers to the sum of biological traits making an individual male or female, and that in this sense, the employees’ “sex” in the cases reviewed was one of the bases for which the individuals were fired. He wrote:
"When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play - both the individual's sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn't care. If an employer would not have discharged an employee but for that individual's sex, the statute's causation standard is met, and liability may attach."
Implications for workers
The Bostock decision clarifies that federal law prohibits employers from discriminating against workers based on sexual orientation or gender identity, a significant victory for LGBTQ+ folks working in the half of US states which previously did not have explicit protections against discrimination. LGBTQ+ people in all states and territories now have a clear legal right to recourse through the Equal Employment Opportunity Commission and federal courts if an employer treats them differently from other workers based on sexual orientation or gender identity.
What’s the catch?
This decision is monumental for US workers who worry about getting fired for their sexual orientation or gender presentation. While we’re celebrating this victory, we can’t help but keep in mind enduring loopholes and shortcomings for LGBTQ+ workers’ rights. Here are a couple that are on our minds:
Title VII only applies to employers with at least fifteen employees, exempting the small enterprises that employ one in six US workers from these federal protections;
There’s a lack of clarity around the viability of religious freedom challenges to these federal anti-discrimination protections. (Justice Gorsuch noted that “super statute” Religious Freedom Restoration Act (RFRA) may "supersede Title VII's commands in appropriate cases.”);
Because Title VII protections only apply to US citizens and prohibit discrimination in foreign operations that a US company “controls,” the decision has little impact for vulnerable LGBTQ+ workers in US companies’ international supply chains.
Even though there are limitations in Bostock's application, we should still see it as a victory for equal rights. There are real exceptions to these federal protections (RFRA, small employers, etc.), and we need to continue to fight to close those loopholes so that no workers experience discrimination. But with such a conservative -- and often ideological -- Court, this is a big win that we should celebrate.
Avery Kelly is a Staff Attorney and Prue Brady is a Legal Intern at Corporate Accountability Lab.
