Alex Reed, an associate professor of legal studies and director of the Legal Studies Certificate Program at the Terry College of Business, researches employment discrimination and his scholarship has been published in some of the nation’s leading law journals, including the University of Pennsylvania Journal of Business Law, Harvard Journal on Legislation, Berkeley Journal of Employment & Labor Law, and the American Business Law Journal.
On June 16, the U.S. Supreme Court voted 6-3 to affirm that the Civil Rights Act of 1964 protects gay and transgender workers from workplace discrimination. Reed explains some important ramifications of the Supreme Court decision.
Reed has long contended that Title VII’s ban on sex discrimination should be interpreted to prohibit discrimination on the basis of sexual orientation and gender identity. Eager to get a sense for how the Supreme Court might ultimately decide the matter, Reed traveled to Washington, D.C. on October 8, 2019, to attend oral arguments in the Bostock case.
How long has the LGBTQ community been pursuing protection from workplace discrimination? Had it reached the Supreme Court before?
LGBTQ Americans have fought to secure employment protections for more than fifty years. One of the first cases to address discrimination against gay persons originated here in Georgia in 1969. In that case, the court held that “[w]hether or not the Congress should, by law, forbid discrimination based upon ‘affectional or sexual preference’ of an applicant, it is clear that the Congress has not done so.”
Separately, bills seeking to ban employment discrimination on the basis of sexual orientation—and more recently, gender identity—have been introduced in almost every Congress going back to 1974. Within the last few years, these bills’ scope has been expanded to address not just discrimination in employment but also in housing, credit, and juries. Whereas the most recent version of the bill—known as the Equality Act—passed the U.S. House more than a year ago, the bill is expected to die in the Senate without becoming law.
Some states already had laws protecting LGBTQ workers. What does the Supreme Court ruling add?
Before Bostock, only 22 states banned private employers from discriminating on the basis of sexual orientation and gender identity. After Bostock, discrimination against LGBTQ persons is now illegal in all 50 states. Significantly, in states like Washington and Delaware—where LGBTQ persons have been protected against employment discrimination for years—workers are now able to contest workplace bias under federal law, which is more robust than their local state laws.
From a business perspective, some of the nation’s largest employers signed onto a friend-of-the-court brief criticizing the “patchwork of incomplete state” laws that existed pre-Bostock and arguing that “a uniform federal rule” protecting LGBTQ workers was necessary. In their brief, these 200+ companies—including Apple, the Coca-Cola Company, General Motors, and Bank of America, among others—observed that LGBTQ employees “are less willing to move to or work in locations where [sexual orientation and gender identity] discrimination is permitted, undermining businesses’ ability to organize a workforce without regard for such arbitrary legal barriers.” The businesses asserted an LGBTQ-inclusive interpretation of Title VII “would strengthen and expand benefits to businesses, such as the ability to recruit and retain top talent; to generate innovative ideas ...; to attract and better serve a diverse customer base; and to increase productivity among employees.”
Do you think large employers and small businesses will view this decision the same way?
Bostock will not have much of an impact on large employers because most Fortune 500 companies already protect LGBTQ workers from employment discrimination. Indeed, as of 2019 more than 90 percent of the Fortune 500 included “sexual orientation” and “gender identity” in their corporate nondiscrimination policies.
Technically, small employers are exempt from Bostock because Title VII does not apply to businesses with 14 or fewer employees. Practically, however, many small businesses will choose to comply with Bostock, either because they already have LGBTQ-inclusive nondiscrimination policies in place or do not wish to be at odds with the spirit of the Supreme Court’s decision.
Are nonprofits or religious institutions impacted?
It is difficult to say.
Writing for the majority, Justice Gorsuch observed that “while other employers in other cases may raise free exercise [of religion] arguments that merit careful consideration, none of the employers before us today represent ... that compliance with Title VII will infringe their own religious liberties in any way.” Consequently, Justice Gorsuch believed Bostock’s religious liberty implications “are questions for future cases.”
In a spirited dissent, Justice Alito argued that the majority’s decision “threaten[s] freedom of religion.” Specifically, he questioned whether religious organizations would be required “to employ individuals whose conduct flouts the tenets of the organization’s faith” and asserted employers will be hesitant to allow employees to express their religious views on various LGBTQ-related topics for fear they will “give rise to Title VII harassment claims.” Justice Alito concluded by stating “[a]lthough the Court does not want to think about the consequences of its decision, ... [t]he entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
One of the plaintiffs was from Clayton County, Georgia. Will this decision have more effect on Georgia than other states?
Although it was consolidated with two other cases from New York and Michigan, the name of the decision is Bostock v. Clayton County, Georgia. After being fired from his job as a child welfare advocate for Clayton County, Mr. Bostock filed a Title VII lawsuit in federal court. The United States District Court for the Northern District of Georgia and the U.S. Court of Appeals for the Eleventh Circuit—located in Atlanta—both ruled in favor of Clayton County, and Mr. Bostock then appealed to the U.S. Supreme Court. Notwithstanding its many Georgia connections, however, decisions by the U.S. Supreme Court apply with equal force across the nation, so Georgia will not be impacted any more or less than other states. (With regard to Mr. Bostock, however, he will now be able to proceed with his lawsuit.)
Is this precedent likely to have a ripple effect, on housing discrimination, military regulations, adoption or custody of children?
Apart from Title VII, more than 100 federal statutes—including the Fair Housing Act and Equal Credit Opportunity Act, for example—prohibit sex discrimination so it is likely the Bostock decision will lead to some or all of these statutes being interpreted to protect LGBTQ persons.
Whether Bostock’s holding that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” will be extended to the constitutional realm is less clear. In his dissent, Justice Alito observed that “despite the important differences between the Fourteenth Amendment [to the U.S. Constitution] and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases,” which would have significant implications for the ban on military service by transgender persons, among many other laws and policies affecting LGBTQ individuals. We will have to wait and see if Justice Alito’s prediction proves accurate.
How will history treat the significance of this decision for LGBTQ rights?
This marks the first time the U.S. Supreme Court has addressed the issue of discrimination against transgender persons, so the fact the Court issued a transgender-inclusive ruling is incredibly significant. Additionally, the decision provides robust federal employment protections to the estimated 8 million LGBTQ workers in the United States, representing the culmination of more than fifty years of advocacy by the LGBTQ community.