Understanding Bostock v. Clayton County

What did the Court Decide? 

On June 15, 2020, the United States Supreme Court issued its decision in Bostock v. Clayton County. The Court had been asked to consider whether Title VII of the Civil Rights Act of 1964 (Title VII) provided nondiscrimination protections for LGBTQ+ employees. The statute explicitly prohibits discrimination on the basis of sex, as well as race, color, religion, and national origin. Historically, the Court has interpreted Title VII broadly, holding that the statute’s ban on sex discrimination also covers sex stereotyping and sexual harassment as forms of sex discrimination even though the statute is silent on those issues.

Writing for the majority, Justice Neil Gorsuch found that “[t]he 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.” The prohibition on sex discrimination must be understood to prevent sexual orientation and gender identity discrimination.

Who does the ruling impact?

Title VII covers employees working for employers with fifteen or more workers. This includes corporations, family-owned businesses, non-profits, religious institutions, and state and local governments. Federal employees are covered under other statutes, but the EEOC has determined that LGBTQ+ federal employees are protected from employment discrimination based on sexual orientation and gender identity.

In the decision, the Court uses the terms “gay”, “lesbian”, and “homosexual” because Gerald Bostock and Don Zarda were fired for being gay men and the Court compares their experience to what might have been if they were lesbians. Even though the Court did not mention bisexual people other than a reference in a footnote, the analysis that the Court adopted also applies to bisexual employees. A few courts have subsequently applied Bostock to cases of discrimination against bisexual employees or rejected arguments that Title VII does not cover bisexual people. Similarly, the Court uses the terms “transgender” and “transgender status” but does not clearly address discrimination against nonbinary people because Aimee Stephens experienced discrimination for being a transgender woman. While courts have not yet contemplated the application of Bostock to nonbinary employees, many have found that nonbinary people are protected under the US Constitution in other areas of life, such as having an X marker on an identity document.

What was left unanswered?

When federal courts assess a legal issue, they examine the facts before them closely. In Bostock, the Court narrowly considered whether LGBTQ+ employees are protected in the context of hiring and firing, as this was the issue facing the plaintiffs. Beyond hiring and firing, Title VII also covers promotions, benefits, harassment, compensation, terms, and conditions of employment.    

The Court noted that it was not addressing whether employers could maintain sex-based dress codes or sex-segregated spaces, such as restrooms, and reemphasized the long-standing legal understanding that the “term ‘discriminate against’ refers to ‘distinctions or differences in treatment that injure protected individuals.’” Additionally, the Court did not opine on how Bostock would apply to religious employers, including the relationship between statutory exemptions and other Court decisions on religious liberties.

Bostock Implementation

EEOC

The EEOC played a pivotal role in Bostock by bringing litigation on behalf of Aimee Stephens in EEOC v. R.G. & G.R. Harris Funeral Homes, which was later combined with the Bostock case when it reached the Supreme Court. Subsequently, the agency, which had already been processing claims based on sexual orientation and gender identity, swiftly began implementing the Bostock decision by creating resources for LGBTQ+ employees who had experienced discrimination, adopting an X gender marker option for employees filing complaints, and issuing enforcement guidance on harassment in the workplace that included information about what constitutes harassment against LGBTQ+ employees.

Executive Actions

In 2021, President Biden issued an executive order titled Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. That EO required federal agencies to review all regulations, policies, and guidance under the agency’s purview to determine if changes needed to be made to implement the Bostock decision across the government. Subsequently, numerous agencies, including the Department of Education, the Department of Housing and Urban Development, the Department of Health and Human Services, and the Department of Justice, updated their regulations, policies, and/or guidance to provide clear protections for LGBTQ+ individuals under sex nondiscrimination laws.