This week, the United States Supreme Court announced a decision that is long overdue — and that is a major victory for LGBTQ equality. By a margin of 6 to 3, the justices of the Supreme Court held that discrimination against LGBTQ employees is illegal under federal law. To understand the significance of this decision — and how it took until 2020 to reach this conclusion — it is helpful to learn more about anti-discrimination employment laws in the United States.
Both state and federal law protect employees from illegal discrimination at work. Under Title VII of the Federal Civil Rights Act of 1964, employment discrimination based on race, color, religion, sex and national origin is prohibited. All 50 states have similar anti-discrimination laws, with some states (like California) offering greater protections for LGBTQ individuals. Just 21 U.S. states specifically forbid employment discrimination on the basis of sexual orientation, gender identity and/or gender expression. In other words, across much of the United States, an employee could be fired, demoted, or otherwise treated unfairly because they are LGBTQ — legally.
In recent years, LGBTQ individuals who faced workplace discrimination have filed lawsuits in federal court, alleging that they were unfairly discriminated against on the basis of sex. These federal courts handled these claims very differently, with some agreeing that discrimination against LGBTQ people is illegal under Title VII, and others finding that this law does not explicitly prohibit discrimination against people for their sexual orientation, gender identity, or gender expression. Because of this “split” in federal courts, the Supreme Court agreed to hear a trio of cases on the issue.
The three cases all involved discrimination against LGBTQ people. Both Donald Zarda, a skydiving instructor, and Gerald Bostock, a child welfare services coordinator, alleged that they were fired because they were gay. Donald Zarda was fired after telling a client that he was gay when she expressed concern about being hooked up to a man during a skydive, while Gerald Bostock was fired after joining a gay softball league. In the third case, Aimee Stephens, a funeral director and embalmer, alleged that she was fired after she announced at work that she is transgender, would begin living as a woman. In the Zarda and Stephens cases, the federal appeals courts found that these actions violated Title VII, as it was discrimination on the basis of sex. In the Bostock case, the federal appeals court held that discrimination against a gay man was not illegal under Title VII.
On June 15, 2020, the Supreme Court released its opinion in the Bostock case (which address all three of the underlying cases). Written by Justice Gorsuch, the Court found that when an employer fires an employee for being gay or transgender, that employer “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.”
Justice Gorsuch offered an example to illustrate his point: an employer has two employees who are both attracted to men, and who are for all intents and purposes, identical, but one is a woman and the other is a man. If the employer fires the male employee because he is attracted to men, but keeps the female employee, then the employer has discriminated against that employee on the basis of sex.
This finding was based on a strict interpretation of the text of Title IV. The majority determined that discrimination against LGBTQ employees cannot happen without discrimination because of sex. Three justices, Alito, Thomas and Kavanaugh, dissented from the ruling. The full opinion, along with the dissents, can be found on the Supreme Court’s website.
The practical result of this decision is that employees who are fired for being LGBTQ will have legal recourse against their employers. Specifically, they will be able to file a complaint with the federal Equal Employment Opportunity Commission (EEOC), and (if authorized by the EEOC), a lawsuit in federal court against their employers. While this will not likely end discrimination on the basis of an individual’s LGBTQ status (just as it hasn’t for race, national origin, age, and other protected categories), it will penalize those employers who discriminate against employees in this way.
Homophobia and transphobia are often rooted in toxic gender norms, or the idea that men and women should act in a way that corresponds with their sex assigned at birth. At its core, this type of discrimination is about an individual’s sex, and how others believe that they should look, who they should be attracted to, and even how they should behave based on their sex. This decision recognizes this reality, and at long last, makes employment discrimination on the basis of sex illegal.
At Blackburn Center, we are committed to equality and to ending all forms of oppression. We join the LGBTQ community in celebrating this decision — and in hoping for a day when no person faces discrimination based on who they are.