Supreme Court Ruling Outlaws Employment Discrimination Against LGBTQ+ Employees
The last few years have mostly seen setbacks in the arena of LGBTQ+ rights, most notably with the Trump Administration’s attempts to strip civil rights protections from trans and non-binary folks. However, the movement scored a major victory at the US Supreme Court on June 15 in the case of Bostock v Clayton County. In fact, this victory could have broader positive effects than the landmark decision that made marriage equality the law of the land five years ago today. Why is this ruling so important?
First, it’s important to understand that there is no Federal law that specifically bans workplace discrimination on the basis of gender identity, gender expression, or sexual orientation. Additionally, the majority of states, including Ohio, do not have state-wide laws banning such discrimination either. This is one of many factors than contributes to elevated rates of poverty and unemployment among LGBTQ+ folks. Until the Bostock decision, there was no legal consequence for employers who fired workers simply for who there are or who they love in most of this country. So why did this all change with the decision in this case?
For decades, legal advocates for LGBTQ+ folks have argued that Title VII of the 1964 Civil Rights Act could be interpreted as banning discrimination against LGBTQ+ workers. Here’s the relevant language: “It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.” Advocates for LGBTQ+ workers have argued that discrimination against people on the basis for gender identity, sexual orientation, or gender expression IS “sex discrimination.” A number of lower courts have agreed with this argument, but the final decision rested with the Supreme Court. Six of the nine justices affirmed this argument, as Justice Neil Gorsuch wrote in his majority opinion: “In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” So what does this mean in practical terms for LGBTQ+ folks?
Most directly and immediately, it means that a person who feels that they have experienced workplace discrimination because of their gender identity, sexual orientation, or gender expression now has the ability to sue their employer in court and win financial damages. This raises the costs of this kind of discrimination for employers, which hopefully will incentivize the adoption of more inclusive practices. Additionally, this legal precedent is already being used to argue against other discriminatory laws and rules, such as the Trump Administration’s recent decision to allow discrimination against trans and non-binary patients in health care settings. However, this decision doesn’t immediately apply outside of employment practices. Significantly, the Trump Administration’s ban on trans folks serving in the military is unaffected by this ruling. While the Bostock decision is monumentally consequential, it doesn’t eliminate the need for state and Federal laws that ban these kinds of discrimination, nor does it detract from the urgency of electing policymakers who will push for LGBTQ+ equality this November. The work of the LGBTQ+ rights movement is far from over.