Bostock one year later: how LGBTQ+ employment discrimination laws are evolving

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Last June, the Supreme Court took a major step forward on protections for LGBTQ+ workers when it handed down a landmark 6-3 decision in Bostock v. Clayton County. In Bostock, the Court ruled that Title VII of the 1964 Civil Rights Act prohibits employers from discriminating on the basis of sexual orientation and gender identity.

While Bostock addressed discrimination in the context of federal law, the Court’s decision has also had significant implications for state anti-discrimination laws.

The Bostock Decision

In Bostock, 140 S. Ct. 1731 (2020), the Court addressed three consolidated cases, each of which presented similar issues of LGBTQ+ discrimination:

  • In Bostock v. Clayton County, Gerald Bostock, a gay man, was fired for “conduct unbecoming of a county employee” after participating in a gay softball league.
  • In Altitutde Express, Inc. v. Zarda, Donald Zarda was fired shortly after revealing to a customer that he was gay.
  • In R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, an employee who had previously presented herself as male was fired after notifying her employer that she planned to begin presenting as female in anticipation of undergoing gender reassignment surgery.

The plaintiffs in all three cases sued their employers for sex discrimination under Title VII. The Court thus faced the issue of whether Title VII’s ban on discrimination “because of sex” covered sexual orientation and gender identity.

Ultimately, the Supreme Court decided that both were included in Title VII’s prohibition on sex discrimination. Writing for the majority, Justice Gorsuch held that:

“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.”

While the Court’s decision in Bostock specifically addressed the language of Title VII, its impact has extended to other laws.

State Laws After Bostock

Many states employ their own anti-discrimination laws. Most, however, do not include explicit protections for sexual orientation and gender identity. Currently, twenty-seven states do not have anti-discrimination laws that protect people from employment, housing, and public accommodation discrimination on the basis of sexual orientation and gender identity. At the same time, forty-nine out of the fifty states have general anti-discrimination laws that cover either “sex” or “gender.”

Bostock has significantly impacted the enforcement of these state laws. Recently, a Texas Court of Appeals addressed the issue of whether Bostock applied to the Texas Commission on Human Rights Act (TCHRA), which bans discrimination “because of… sex.” Tarrant Cnty. Coll. Dist. v. Sims, No. 05-20-00351-CV (Tex. App. Mar. 10, 2021).

The court held that, in light of the Supreme Court’s decision in Bostock, they were compelled to read the TCHRA’s ban on sex discrimination “as prohibiting discrimination based on an individual’s status as a homosexual or transgender person.”

And Texas is not the only state to endorse SCOTUS’s reasoning in Bostock. Several other states have not waited for litigation to decide whether Bostock applies to their state law, instead formally announcing their intent to adopt the Court’s Bostock reasoning. In February, Florida’s Commission on Human Relations issued a notice that it would begin following Bostock when investigating state-level sex discrimination cases. Five other states – Arizona, Kansas Nebraska, North Dakota, and Pennsylvania – have also adopted Bostock into state law.

Why it Matters

While the Bostock decision extended protections under federal anti-discrimination law to LGBTQ+ workers in all fifty states, many state laws offer stronger protections than those available under Title VII.

For example, Title VII applies only to employers with at least fifteen employees. 42 U.S.C. §2000e. The majority of state employment discrimination laws, including those in Arizona, Kansas, North Dakota, and Pennsylvania, cover smaller employers. By adopting Bostock rationale, those states are now offering protection to LGBTQ+ employees whose employers may not be covered by Title VII.

State laws may also be more generous in other ways. Title VII caps damages in employment discrimination suits at different levels depending on the size of the employer. This can be as low as $50,000 and as high as the maximum combined compensatory and punitive damages of $300,000 (this does not include damages for lost wages). 42 U.S.C. §1981a.

However, some states, like Florida, do not impose a cap on compensatory damages for private employers. Fla. Stat. §760.11(5).[1] This means that, particularly for employees of smaller employers, it may be possible to recover more in damages for a discrimination claim under state law than Title VII.

Controversy Over Bostock

Though many have celebrated the Bostock decision for granting new legal protections to LGBTQ+ individuals, some have argued that these protections are in tension with the religious freedoms of employers, who, due to their religious beliefs, may be opposed to hiring an LGBTQ+ employee. Indeed, the Supreme Court’s ruling in Bostock specifically contemplated this potential conflict.

This argument is central to a recent suitU.S. Pastor Council et al. v. Equal Employment Opportunity Commission, which was filed by Christian groups in the Northern District of Texas. The plaintiffs in the suit argue that they are entitled to a “religious exemption” from Bostock under the First Amendment and the Religious Freedom Restoration Act (RFRA). Additionally, they contend that they may still enforce what they claim are “gender neutral” anti-LGBTQ+ policies, such as bans on employees attending gay bars or using dating apps such as Grindr. The suit withstood a motion to dismiss in January and is currently set to go to trial this summer.

SOX whistleblower casesDiscussions of religious freedom have featured prominently in recent clashes over LGBTQ+ anti-discrimination policies outside of the employment context as well. The Supreme Court is expected to issue a key decision this month in Fulton v. City of Philadelphia, which deals with the City of Philadelphia’s refusal to contract with a Catholic social services organization that refuses to provide service to same-sex couples. In a recent filing, the Department of Justice also announced its intent to “vigorously” defend religious schools’ exemption to anti-LGBTQ+ discrimination laws.

With multiple challenges to sexual orientation and gender identity protections – including those granted by Bostock – pending, the next few months could be key to determining the scope of protections against employment discrimination for LGBTQ+ individuals.

[1] Florida does cap punitive damages at $100,000 for all private employers

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