Bostock v. Clayton County, , is a landmark United States Supreme Court civil rights decision in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination on the basis of sexual orientation or gender identity.
The plaintiff, Gerald Bostock, was fired from his county job after he expressed interest in a gay softball league at work. The lower courts followed the Eleventh Circuit's past precedent that Title VII did not cover employment discrimination based on sexual orientation. The case was consolidated with Altitude Express, Inc. v. Zarda, a similar case of apparent discrimination due to sexual orientation from the Second Circuit, but which had added to a circuit split. Oral arguments were heard on October 8, 2019, alongside R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a similar question of Title VII discrimination relating to transgender persons.
On June 15, 2020, the Court ruled in a 6–3 decision covering all three cases that discrimination on the basis of sexual orientation or gender identity is necessarily also discrimination "because of sex" as prohibited by Title VII. According to Justice Neil Gorsuch's majority opinion, that is so because employers discriminating against gay or transgender employees accept a certain characteristic (e.g., attraction to women) in employees of one sex but not in employees of the other sex.
The ruling has been hailed as one of the most important legal decisions regarding LGBTQ rights in the United States, along with Lawrence v. Texas (2003) and Obergefell v. Hodges (2015). Many legal analysts claimed that the case defined Gorsuch as a textualist in statutory interpretation.
Background Legislation and prior case law The Civil Rights Act of 1964 was passed into law amid the civil rights movement. It had been proposed by President John F. Kennedy as a means to combat racial discrimination and racial segregation in the aftermath of the Birmingham campaign. After Kennedy's assassination in November 1963, his successor Lyndon B. Johnson advocated passage of the Civil Rights Act in the following year.
Among several provisions in the law is Title VII, which covers equal employment opportunities. Its key provision, codified at , states that it is illegal to discriminate in any hiring or employment practices based on an "individual's race, color, religion, sex, or national origin". To enforce this requirement, Title VII established the Equal Employment Opportunity Commission (EEOC), a federal agency based on an office Kennedy had established with Executive Order 10925, to help oversee any reported employment discrimination and file lawsuits against entities that the EEOC believes have discriminated in the employment context. In addition, the EEOC may make its own determination on cases rather than taking these to court. These decisions do not carry the weight of case law, but the Supreme Court does consider the weight of the EEOC opinions as the EEOC "constitute[s] a body of experience and informed judgment to which courts and litigants may properly resort for guidance".
The nature of protected classes under § 2000e-2(a)(1) have been refined through case law over the years. Three key Supreme Court cases prior to Bostock had considered the aspect of "sex" in the context of the statute: Meritor Savings Bank v. Vinson, , which ruled that sexual harassment was considered a form of unlawful discrimination under Title VII; Price Waterhouse v. Hopkins, , which determined that gender stereotyping was also a form of discrimination under Title VII and thus unlawful; and Oncale v. Sundowner Offshore Services, Inc., , which further refined Meritor Savings Bank that sexual harassment between members of the same sex was also considered unlawful discrimination.
LGBTQ employment protections
Until Bostock, whether the Civil Rights Act gave federal protection against employment discrimination to the class of LGBTQ people was in dispute. Individual states since 1973 acted on their own accord to extend employment discrimination protections to explicitly cover LGBTQ employees, and before the Bostock decision, 21 states had included LGBTQ as a protected class against employment discrimination, while other states offered some but less extensive protections in their laws. States with such protections often have a state-level board that performs functions equivalent to the EEOC, and which will work with the EEOC to unify employment discrimination regulations. Numerous local governments passed similar LGBTQ employment discrimination statutes as well.
Since 1994, members of the Democratic Party in the U.S. Congress have introduced some form of the Employment Non-Discrimination Act in nearly every two-year term, which would have amended the Civil Rights Act to include both sexual orientation and gender identity as protected classes under Title VII at the federal level and thus applying across the entire country. Passage of these bills has generally failed because lack of support among Republicans, especially in the House of Representatives. More recently, the Equality Act, expanding the non-discrimination protections to include housing, education, and other areas, was introduced in 2015 and similarly introduced each term, failing to pass due to declining support for LGBTQ rights (and particularly transgender rights) among Republicans since 2013.
The EEOC has used past case law and its evaluation of discrimination cases brought before it to establish that LGBTQ discrimination is unlawful under the context of the Civil Rights Act. In 2012, the EEOC ruled in Macy v. Holder that discrimination on the basis of gender identity is a form of sex stereotyping, and thus prohibited in employment as a form of discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964. In 2015, the EEOC ruled in Baldwin v. Foxx that discrimination on the basis of sexual orientation is also prohibited in employment under Title VII, on the exact same basis as in Macy. The following year, the EEOC filed its first pair of test cases in federal court arguing that sexual orientation is protected by Title VII.EEOC files test case to hold that Title VII Prohibits LGBTQ Discrimination
Case background
Gerald Bostock was an employee of Clayton County, within the Atlanta metropolitan area, as an official for its juvenile court system since 2003, with good performance records through the years. In early 2013, he joined a gay softball league and promoted it at work for volunteerism. In April 2013, Clayton County conducted an audit of funds controlled by Bostock and fired him for "conduct unbecoming a county employee". Georgia had no law protecting LGBTQ people from employment discrimination at the time.
Bostock believed that the county used the claim of misspent funds as a pretext for firing him for being gay, and sought legal recourse for workplace discrimination in 2016 in the United States District Court for the Northern District of Georgia. The county sought to dismiss the claim of prohibited discrimination—the District Court agreed to dismiss, on the basis of the precedent established in the 2017 case Evans v. Georgia Regional Hospital decided by the Eleventh Circuit (of which the District is part), which held that the Civil Rights Act's Title VII does not include protection against discrimination towards sexual orientation.
Circuit split Bostock appealed to the Eleventh Circuit, where the three-judge panel affirmed the District Court's ruling in 2018. The Eleventh Circuit relied on two prior cases: its previous ruling in Evans, and Blum v. Gulf Oil Corp. from the Fifth Circuit in 1976. In upholding the ruling, the Eleventh Circuit pointed to their ruling in Evans that dismissed the Supreme Court's precedent against sex discrimination set by Price Waterhouse and Oncale.
The Eleventh Circuit's ruling in Evans furthered a circuit split, as it conflicted with that of the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana (2017) in which, by an 8–3 decision, the Circuit found that discrimination in employment on the basis of sexual orientation violated Title VII. The Second Circuit came to the same conclusion in Zarda v. Altitude Express, Inc. (2018) (Altitude Express) by a 10–3 vote en banc. Thus the Eleventh Circuit, on the one hand, and the Second and Seventh Circuits, on the other, were divided on the question of the interpretation of Title VII. These cases and a related case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, (Harris Funeral Homes), in which the Sixth Circuit found Title VII also covered transgender employment discrimination, set the stage for the Supreme Court's decision in Bostock.
Supreme Court
Bostock petitioned the Supreme Court for a writ of certiorari on the question of whether sexual orientation is covered by Title VII of the Civil Rights Act. The Supreme Court granted the petition in April 2019, and consolidated the case with Altitude Express. Between these cases, as well as prior Circuit court decisions, there had been a split of opinions on whether sexual orientation discrimination is covered by Title VII. The combined Bostock and Altitude Express cases drew numerous amicus curiae briefs. Over thirty-six briefs were filed in support of Bostock and the estate of Zarda, including one signed by over 200 major corporations such as Amazon, the Walt Disney Company, and Coca-Cola, that asserted that it would not be "unreasonably costly or burdensome" for them to accept sexual orientation as a protected class under Title VII. Over 25 briefs were filed to support Clayton County and Altitude Express; among them, the U.S. Department of Justice argued that sexual orientation was not covered, but asserted, "Congress of course remains free to legislate in this area; and employers, including governmental employers, remain free to offer greater protections to their workers than Title VII requires."
Oral arguments in the consolidated cases were heard on October 8, 2019, alongside the arguments in Harris Funeral Homes, the case related to Title VII protections for transgender individuals. Just prior to the hearings, police from the District of Columbia had discovered two suspicious packages near the Supreme Court building and temporarily cleared the plaza of arriving supporters to remove the packages. In oral arguments, the statutory claims centered on the discrimination "because of ... sex" language of the Civil Rights Act of 1964.
Andrée Sophia Blumstein, the Solicitor General of Tennessee, predicted that the Supreme Court would make a consequential decision in this case because of the sensitivity of the issue and the Constitutional implications.Blumstein, A. (2019, September 5). Symposium: How the Title VII Trilogy May Test the Court. SCOTUSblog. In an article before oral arguments, Blumstein stated that the decision would determine whether the Supreme Court would remain solely as the "expositor of the law" or become the policymakers alongside Congress.
Decision Majority opinion