June is Pride month — a time to celebrate the LGBTQ community and the strides that have been made towards equality. Yet in many ways, LGBTQ people are still fighting for equal rights in the United States. A recent United States Supreme Court decision will help this struggle in one important respect: forbidding workplace discrimination on the basis of sexual orientation, gender identity or gender expression.
In California, these protections were already in place. Yet the Supreme Court Decision is still an important milestone, as it will allow all LGBTQ people who experience workplace discrimination to seek justice, whether it be through state or federal law.
A Landmark Decision
On June 15, 2020, the Supreme Court released its opinion in the case of Bostock v Clayton County, U.S. Supreme Court (2020). In the decision, the Court found that discrimination against employees for their sexual orientation, gender identity or gender expression is forbidden under Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, among other things. This ruling represents a huge step forward in ensuring equality for all Americans in the workplace.
The Bostock decision was based on three underlying cases, each of which involved discrimination against LGBTQ people. Donald Zarda, a skydiving instructor, alleged that he was fired for his sexual orientation after he told a client that he was gay after she expressed concern about being hooked up to a main during a skydive. Gerald Bostock was fired from his job as a child welfare services coordinator after he joined a gay softball league. Finally, Aimee Stephens, a funeral director and embalmer, alleged that she was fired after she announced at work that she is transgender and would begin living as a woman.
Each of the three individuals filed a lawsuit against their employers, arguing that they were fired illegally in violation of Title VII. In the Zarda and Stephens cases, federal appeals courts found that their terminations were illegal, as their employers discriminated against them on the basis of sex. In the Bostock case, the federal appeals court determined that employment-based discrimination against a gay man was not illegal under Title VII. These cases were appealed to the United States Supreme Court.
In a 6-3 decision, the Supreme Court agreed with Zarda, Bostock, and Stephens and found that discrimination against a LGBTQ person is forbidden. Justice Neil Gorsuch wrote the opinion for the majority, stating that when an employer fires an employee for being gay or transgender, that employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” In other words, discrimination against LGBTQ employees cannot happen without discrimination on the basis of sex.
Justice Gorsuch then offered an example to illustrate his point:
An employer has two employees who are for all intents and purposes, identical, but one is a woman and the other is a man. Both employees are attracted to men. If the employer fires the male employee because he is attracted to men, but keeps the female employee, then the employer has discriminated against that employee on the basis of sex.
Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh dissented from this decision.
How This Ruling Affects Californians
The Bostock decision has huge ramifications for all Americans, as LGBTQ individuals who face workplace discrimination may now file a complaint with the Equal Employment Opportunity Commission (EEOC). For Californians, however, the ruling simply adds another layer of protection as California law already prohibited this type of discrimination.
Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against an employee on the basis of their sexual orientation, gender identity or gender expression. Under the FEHA, it is an unlawful employment practice to take any type of discriminatory action against an employee because they are LGBTQ. This includes:
Refusing to hire a candidate;
Firing or terminating an employee;
Providing reduced or inferior benefits;
Assigning inferior work duties;
Refusing to promote an employee
Offering lower pay or lesser conditions of employment; or
Refusing to select a person for a training program.
This type of discrimination isn’t always obvious. Employers are often savvy enough to try to hide their true purpose in firing someone or taking a negative action against them. A skilled lawyer can collect evidence to prove that the firing, demotion, or other act had a discriminatory basis.
Consider This Situation:
John has worked at a Los Angeles architecture firm for 10 years. He has always gotten great reviews from his employers and clients alike. Yet despite his success, he has not gotten a promotion in his time at the company — even as he watches younger, less qualified employees rise in the ranks. He believes that he hasn’t been promoted because he is a trans man, and files a complaint with the DFEH.
His employer denies that this is the reason that he hasn’t been promoted, and instead claims that John did subpar work and wasn’t well-liked. Yet John’s attorney has thoroughly investigated the situation, and finds evidence of discrimination, such as prohibiting John from meeting with certain clients, a supervisor making jokes about Caitlyn Jenner, and coworkers asking John offensive, invasive questions about his body and his sex life. By showing a pattern of discriminatory or hostile conduct, John and his lawyer may be able to prove that the real reason that he hasn’t been promoted is because of his gender identity.
California law may provide greater protection for employees like John because the FEHA applies to more companies. Employers with 5 or more employees, labor organizations, and employment agencies are all subject to FEHA. In contrast, federal anti-discrimination laws only apply to employers with 15 or more employees.
If you believe that you have been subjected to illegal discrimination on the basis of your sexual orientation, gender identity, or gender expression, you now have the option of filing a complaint with the California Department of Fair Employment and Housing (DFEH) or the EEOC. An experienced employment attorney can advise you on whether it is better to file a complaint with the state or the federal government. Once you have done so, you then may be able to pursue the next step: a discrimination lawsuit against your employer.
The Bostock ruling may not change much for Californians, or for residents of the 20 other states where this type of discrimination was already forbidden. But it represents a major shift in the law — as well as hope for a future where employees don’t face this type of discrimination on the basis of who they are and who they love.