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The Silver Lining of a Dark Moment in History – The Supreme Court’s Landmark Decision in Bostock Underscores Judicial System’s Potential to Effectuate Societal Change

Pride Month 2020 will largely be remembered as taking place during a global pandemic and ongoing civil unrest following the police killings of George Floyd, Breonna Taylor, and Ahmaud Arbery. With very few officers arrested for these killings and Congressional impasse surrounding police reform, there was a building sense of frustration in the U.S. until a landmark Supreme Court ruling came down in Bostock v. Clayton County, where the Court expanded the legal rights of the LGBTQ+ community in the workplace and reminded the country of the judicial system’s unique ability to advance social justice when other branches of government have seemingly fallen short.[1]

Title VII of the Civil Rights Act of 1964 was originally adopted to prevent discrimination on the basis of race, color, religion, sex, and national origin in the workplace.[2] For example, in United Steelworkers v. Weber, the Supreme Court upheld employers’ affirmative action-based training programs, finding that the training programs’ goal to “break down old patterns of racial segregation and hierarchy” aligned with the goals of Title VII.[3]  

Title VII has similarly helped pave the way in the fight for gender equality in the workplace. Most notably, in 1989, the Supreme Court ruled in Price Waterhouse v. Hopkins that employers could not discriminate based on sex stereotyping or an employee’s failure to conform with gender norms, thereby opening the door to a more expansive reading of “sex discrimination” as contemplated by the statute.[4] Seeing the success of Title VII in preventing other forms of discrimination, advocates for LGBTQ+ rights have worked tirelessly for decades to expand the scope of Title VII to protect employees from discrimination based on sexual orientation and gender identity. See, e.g., Memorandum Order, U.S. EEOC v. Scott Medical Health Center, P.C., ECF 48 at 10-11 (Nov. 4, 2016) (“There is no more obvious form of sex stereotyping than making a determination that person should conform to heterosexuality. . . . That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate”).[5] 

Origins of the Bostock decision date back to 2012, when plaintiff Aimee Stephens worked up the courage to reveal to her coworkers at the funeral home her true identity as a transgender woman.[6]  When Aimee came out to her boss in 2013, she was promptly fired two weeks later. With the assistance of the ACLU, Aimee filed a complaint against her employer with the Equal Employment Opportunity Commission (“EEOC”) for sex discrimination in violation of Title VII.[7] 

Along with Aimee’s case, the Supreme Court considered two other sex discrimination cases. In 2013, plaintiff Gerald Bostock received criticism from his employer about his sexual orientation and participation in a gay recreational softball league.[8] Bostock was subsequently audited by his employer and fired for “conduct unbecoming of [] employees.”[9] Plaintiff Donald Zarda was similarly terminated by his employer solely because of his sexual orientation and failure to conform to male gender stereotypes.[10] 

These three cases were argued on October 8, 2019, in what many commentators suggested was a futile attempt to convince a conservative-leaning Supreme Court to apply Title VII protections to LGBTQ+ employees. To the surprise of many skeptics, the Supreme Court ruled in favor of the employees, marking a historic victory for the LGBTQ+ community. Founded in textualism, Justice Neil Gorsuch reasoned, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[11]

On the heels of the Department of Health and Human Services’ recent regulation reversing protections for transgender patients from discrimination in the healthcare sector and in the wake of continued protests and civil unrest in response to police brutality against African-Americans, this momentous and timely opinion illustrates how the law can be used as a tool to achieve a more just and equal society. Although it is clear that an incredible amount of work lies ahead—for LGBTQ+, gender, and racial equality—this is a meaningful victory that warrants celebration during Pride Month. Aimee Stephens, Donald Zarda, George Floyd, Breonna Taylor, and Ahmaud Arbery tragically did not live to see the immense impact of their lives in creating this unprecedented moment in history. However, the pursuit of social justice both in and out of the courts honors their legacies and allows us to continue to say their names—on protest signs, on social media, and in the caption of a seminal United States Supreme Court case.

 

[1] Bostock v. Clayton Cty., Ga., 590 U.S. ___, No. 17-1618, 2020 WL 3146686 (2020).

[2] Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964).

[3] See United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 195 (1979).

[4] Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).

[5] This 2016 EEOC action marked the first time the U.S. government filed a sex discrimination lawsuit based on sexual orientation. See https://www.eeoc.gov/newsroom/federal-court-issues-historic-ruling-eeoc-lawsuit-civil-rights-act-1964-prohibits-sexual.

[6] Bostock, 2020 WL 3146686, at *3.

[7] Id. at *4.

[8] Id. at *3.

[9] See id. (internal quotations omitted).

[10] Id.

[11] Id. at *7.

Related Lawyers: Halli Spraggins
Related Practice Areas: Civil and Human Rights

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