The Broad Implications of the Bostock Decision on LGBTQ+ Employment

May 10, 2021 by Aburiyeba Amaso

by Chloe Peeples

“Many people believe trans women choose to engage in the sex trade rather than get a real job. That belief is misguided because sex work is work, and it’s often the only work available to marginalized women.” ― Janet Mock[1]

 

In a landmark decision handed down on June 15, 2020, the Supreme Court held that employers violate Title VII when they fire an individual based on their sexuality or gender identity because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[2] Prior to this decision, the Circuits were split on whether firing LGBTQ+ employees based on their sexuality or gender identity qualified as discrimination based on sex.[3] Following Bostock, LGBTQ+ employees are protected from employment discrimination based on their gender identity or sexuality.

This decision is crucial because “[u]nemployment and underemployment lies at the core of poverty.”[4] Without the opportunity to join the labor force, it is almost impossible to rise out of poverty. A survey with over 27,715 respondents from all fifty states and the District of Columbia found that transgender persons are “twice as likely to be living in poverty as the general U.S. population.”[5] The statistics are even worse for transgender people of color: 43 percent of Latinx respondents, 41 percent of Native American respondents, 40 percent of multiracial respondents, and 38 percent of Black respondents lived in poverty.[6]

Extreme levels of unemployment in the LGBTQ+ community stems from conscious and unconscious bias in those who make the hiring decisions.[7] Numerous organizations have conducted studies where fictitious resumes were sent to employers; some resumes had no indication of sexual orientation or gender identity and some resumes had indicators that the applicant was a gay man,[8] queer woman,[9] or transgender person.[10] Resumes that belonged to gay men, queer women, and transgender applicants received significantly fewer callbacks.[11] Discrimination during the hiring process has led to a high prevalence of homelessness, marginal socioeconomic status, and lower than average income in the LGBTQ+ community.

Bostock has the ability to be applied broadly in two significant ways: (1) LGBTQ+ applicants can now bring suit under Title VII claiming disparate treatment for failure to hire, and (2) the Supreme Court’s interpretation of the phrase “because of sex” in Title VII can be applied to many other federal statutes, therefore broadening their reach. Bostock held that discrimination against transgender and gay employees qualified as discrimination “because of sex” and it is disparate treatment discrimination in violation of Title VII.[13] It is now a violation of Title VII for employers to fail to hire an applicant solely because they are transgender or gay.[14] This can be used to combat the conscious and unconscious bias that is a significant barrier to employment for LGBTQ+ applicants.

The textual interpretation of Title VII in the Bostock decision can also be applied broadly to many other federal statutes. The Bostock decision states that discrimination based on gender identity and sexual orientation is discrimination “because of sex.” Over 100 federal statutes prohibit discrimination because of sex, as Justice Alito helpfully pointed out in his 107-page dissent.[15] These federal statutes include prohibitions of discrimination because of sex in “housing, education, credit, health care[,]”[16] and more. Applying this “because of sex” definition to other federal statutes would allow LGBTQ+ people to bring suit when they are barred from housing, federal benefits, or education based on their sexuality or gender identity.

In less than one year, Bostock has already been cited in over 250 court opinions.[17] While this decision will not change discrimination against LGBTQ+ people overnight, there is finally recourse available at the federal level, a significant step towards a more equitable and just future.

 

[1] Janet Mock, Redefining Realness: My Path to Womanhood, Identity, Love & So Much More 199–200 (2014).

[2] Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020).

[3] The Second and Sixth Circuits agreed that discrimination against transgender and gay employees violated Title VII’s mandate against discrimination based on sex. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 112 (2d Cir. 2018); Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 572 (6th Cir. 2018). The Eleventh Circuit, however, held that employers were not barred by Title VII from firing employees for being gay. Bostock v. Clayton Cty. Bd. of Commissioners, 723 F. App’x 964 (11th Cir. 2018).

[4] Employment and Decent Work, United Nations Dep’t of Econ. and Soc. Aff., https://www.un.org/development/desa/socialperspectiveondevelopment/issues/employment-and-decent-work.html#:~:text=and%20Decent%20Work-,Employment%20and%20Decent%20Work,at%20the%20core%20of%20poverty.&text=Rapid%20economic%20growth%20can%20potentially,to%20a%20reduction%20in%20poverty (last visited April 18, 2021).

[5] Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa mottet, & Ma’ayan Anafi, The Report of the 2015 U.S. Transgender Survey, Nat’l Ctr. for Transgender Equal. 6 (2016).

[6] Id.

[7] Shabab Ahmed Mirza, Daniella Zessoules, Galen Hendricks, Michael Madowitz, & Laura E. Durso, The State of the LGBTQ Community in the Labor Market: Pre-June 2018 Jobs Day Release, Ctr. for Am. Progress (July 5, 2018, 9:01 AM), https://www.americanprogress.org/issues/economy/news/2018/07/05/453094/state-lgbtq-community-labor-market-pre-june-2018-jobs-day-release/.

[8] András Tilcsik, Pride and Prejudice: Employment Discrimination against Openly Gay Men in the United States, 117 Am. J. Soc. 586, 588 (2011).

[9] Emma Mishel, Discrimination against Queer Women in the U.S. Workforce: A Resume Audit Study, 2 Socius: Soc. Res. for a Dynamic World 1, 10 (2016).

[10] Teresa Rainey & Elliot E. Imse, Qualified and Transgender, D.C. Office of Human Rights 14 (Nov. 2015).

[11] Mirza et al., supra note 7.

[12] Matthew S. Meurer-Lynn, Trans* individuals’ experiences with employment discrimination: supporting

self-efficacy in the job-seeking process (2015) (Master’s Thesis, Smith College),

https://scholarworks.smith.edu/theses/664.

[13] Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1740 (2020).

[14] There are additional, specific requirements in order to prove a disparate impact failure to hire case. See U.S. Equal Emp’t Opportunity Comm’n, Management Directive for C.F.R. Part 1614 (EEO-MD-110) App. J-2 (Aug. 5, 2015).

[15] Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1791 (2020) (Alito, J., dissenting).

[16] Julie Moreau, Supreme Court’s LGBTQ Ruling Could Have ‘Broad Implications’, NBC News (June 23, 2020, 4:40 AM), https://www.nbcnews.com/feature/nbc-out/supreme-court-s-lgbtq-ruling-could-have-broad-implications-legal-n1231779.

[17] Citing ReferencesBostock v. Clayton Cty. Georgia, Westlaw Edge, https://1.next.westlaw.com/RelatedInformation/I576207cbaed911eaa4a6da07b08de5cd/kcCitingReferences.html?docSource=9a9e6ec97a9f482ca02b5c6b21a10b2c&pageNumber=1&sortType=depthdesc&sortOrder=depthdesc&facetGuid=h562dbc1f9a5f4b0c9e54031a19076b9c&transitionType=ListViewType&contextData=(sc.UserEnteredCitation) (last visited Apr. 27, 2021).