United States Supreme Court

BOSTOCK v. CLAYTON COUNTY, GEORGIA

THREE PLAINTIFFS BROUGHT DISCRIMINATION CASES IN DIFFERENT STATES AFTER THEY WERE FIRED FOR BEING GAY OR TRANSGENDER

There were three similar cases before the Supreme Court. Plaintiff Gerald Bostock worked as a child welfare advocate for Defendant Clayton County, Georgia. After Bostock began participating in a gay softball league, he was fired for conduct unbecoming a county employee. Donald Zarda worked as a skydiving instructor in New York. He was fired days after mentioning that he was gay. Aimee Stephens worked for a funeral home in Michigan. At first, she presented as male. After six years, she told the funeral home that she planned to present as a woman, and she was fired. All three brought suit under Title VII of the Civil Rights Act of 1964, which outlawed discrimination in the workplace based on sex. The Supreme Court granted certiorari to resolve a disagreement between the courts of appeals.

DISCRIMINATION BASED ON GAY OR TRANSGENDER STATUS IS DISCRIMINATION BASED ON SEX

Title VII prohibits employers from taking certain actions “because of” sex. An employer violates Title VII when it intentionally fires an individual employee based in part on sex. “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” If a male and female employee are each attracted to men, and the employer fires the male employee for being attracted to men, the employer has discriminated against the male for traits or actions it tolerates from female employees. Similarly, an employer who allows employees to present as female if they identified as female at birth, but not if they identified as male at birth, is discriminating based on sex. In both situations, an “employee’s sex plays an unmistakable and impermissible role in the discharge decision.” If an employer fires any woman discovered to be a Yankees fan, but no men who are Yankees fans, the firing is because of sex, even though another factor is at play. Title VII “doesn’t care” whether multiple factors are at play; if “an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met.” The Supreme Court held: “At bottom, these cases involve no more than the straightforward application of

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Craig Byrnes

When I was in law school, I learned that there were some injustices in the law that were there before I was even born, and that I felt would be there throughout my lifetime. No punitive damages in contract cases. Textualism when the meaning of words are decided by the reader.

The federal government didn’t protect all of its people against discrimination. Our citizens were unprotected against discrimination based on LGBTQ+ status.

I felt powerless over these injustices. I felt particularly upset by the unequal treatment afforded American citizens by the federal government. How could this country, which I grew up learning to love, not even pretend that all of its citizens were created equal? Not even pretend to afford them equal protection under the law? It made no sense, but I didn’t believe I would ever see it change. Maybe my grandchildren would have a chance at seeing it, but I wouldn’t.

Given the powerlessness I felt, I can only imagine the feelings of my fellow citizens who went their lifetimes unshielded by this country’s laws.

Rejected. Alien. Unwanted. Maybe even hated. This is what I imagined they must have felt, and the laws as they existed didn’t provide me any avenue to salve those wounds.

And the feelings were just the beginning. The law’s failure to protect all of its citizens gave a tacit nod to the nation that discrimination against and hatred of our fellow citizens would be tolerated. It would sometimes be encouraged, to our everlasting discredit. Discrimination has long-lasting effects, destroying a middle class that would have formed naturally on its own but for the discrimination.

The United States Supreme Court has finally lifted the country’s imprimatur from this long-standing form of bigotry, at least in the employment context.

I don’t imagine or pretend that these decisions will make everything right. Our experiences with civil rights movements tell us that this will be a long process. CELA attorneys devote our careers to fighting the injustices that continue even in the face of the laws that prohibit them.

Today, however, there is reason to celebrate. With Bostock, Stephens, and Zarda in the books, the country has taken another step toward the law finally acting as a shield for all of us. 

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