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Supreme Court’s Bostock Decision Protects LGBTQ Employment

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Ann M. Johnson
January 11, 2020 

The U.S. Supreme Court ruled to safeguard most employees from sexual orientation and transgender status discrimination this past summer, five years after legalizing same-sex marriage. The court issued the determination in Bostock vs. Clayton County, Georgia under Title VII of the 1964 Civil Rights Act. Now, as with other protected classes, Bostock shields LGBTQ individuals from discrimination in recruiting, applying, hiring, firing and promoting employees. Elected officials and governmental managers need to ensure compliance priority since the decision became effective July 10, 2020.

Over 20 states, the District of Columbia and many local government employees possess sexual orientation and gender identity workplace protections already. Bostock now makes these safeguards uniform and extends their reach nationwide. It affects seven million LGBTQ community members in the United States, according to CNN. Justice Gorsuch, writing for the 6-3 majority incisively opines, “An individual’s homosexuality or transgender status is not relevant to employment decisions . . . It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The seed of this landmark decision sprouted from the Civil Rights Act over five decades ago. It makes employee discrimination unlawful on the basis of race, color, sex, religion and national origin. Bostock was consolidated with two other cases, Altitude Express Inc. vs. Zarda (2020) and R.G. & G.R. Harris Funeral Homes Inc. vs. Equal Employment Opportunity Commission (2020). The Bostock case involved a gay man who worked as a child welfare services coordinator in Clayton County, Georgia since 2003. He earned positive reviews until 2013 when his employer learned that he participated in a gay recreational softball league. He was terminated for “conduct unbecoming” an employee. Similarly, in Zarda, a gay skydiver was fired for referencing his orientation. Relatedly, a funeral home worker, in Harris Funeral Homes, was fired after she told her employer she intended to transition from a man to a woman. The court consolidated these cases with Bostock to resolve the Title VII issue.

The court examined available precedent from the Equal Employment Opportunity Commission (EEOC) cases and lower courts cases regarding LBGTQ Title VII discrimination. In 2012, the EEOC ruled in Macy vs. Holder that stereotyping was illegal on the basis of gender identity, which falls under the protected class of “sex.” Likewise, in 2015 the EEOC ruled in Baldwin vs. Foxx that discrimination on the basis of sexual orientation is prohibited.

Prior court cases also were examined. In Price Waterhouse Cooper vs. Hopkins (1989), a well performing female employee was not promoted when she did not dress in a way considered “feminine” and used foul language. Male co-workers used the comparable language but received no negative employment treatment. The court decided sex stereotyping was discriminatory behavior under Title VII. Furthermore, in Oncale vs. Sundowner Offshore Services, Inc. (1998), the court declared harassment between same-sex members as unlawful discrimination.

Bostock is not universally applicable to all public agencies currently. Title VII applies to local, state and federal agencies as well as private employers with 15 or more employees. There are some small cities, townships and special districts that have less than 15 staff members. Beyond small jurisdictions, it is worth mentioning that all levels of governments contract out certain services for efficiency and economy reasons. Employers are not liable generally for the conduct of contractors. They are not considered to be employees.

Potential unresolved issues await on the horizon. While under Bostock the majority of schools must follow Title VII regarding employment, certain civil rights laws do not apply to religious schools. In Justice Samuel Alito’s dissent he called out the Supreme Court for not addressing issues related to locker rooms, bathrooms or dress codes. It is likely that future judicial action will provide guidance on lockers, bathrooms and dress codes.

Public agencies need to advance equity and inclusiveness through proactive compliance with Bostock. Public service managers should huddle with their legal counsel and human resources departments. They should comprehensively review current policies and operational issues concerning all potential Bostock aspects. There are two primary objectives. First, public managers must ensure that the LGBTQ community is treated equitably as other protected classes under employment law, both collectively and individually. While public agencies with fewer than 15 employees are exempt from Bostock, they are not exempt from the competitive market for competent employees. Advancing employer attractiveness for future employee prospects while retaining those with needed proficiencies should encourage all public agencies to comply with Bostock.

Second, much like sexual harassment training in the past, LGBTQ protections and complaint resources could be posted and all employees trained. Policy and operational fine-tuning must occur quickly and reflect the highest ideals of inclusivity while addressing any liability concerns. Now that the Bostock ruling is available, delayed equity and inclusivity adjustments could sow hurtful discord among those newly protected in our vital public agencies. Immediate action is more welcoming and, perhaps, even healing.

Author: Ann M. Johnson received her JD/MA from the University of Cincinnati. She practiced law at Michigan Court of Appeals and for the U.S Department of Housing and Urban Development in Washington D.C. After receiving a Ph.D., at University of Delaware she taught at University at Albany. Dr. Johnson is currently an associate professor at CSUSB, Management Department.

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