Employment discrimination against LGBT persons

• Author: Kavisha Patel/Elaina Rahrig
• Pages: 527-551

EMPLOYMENT DISCRIMINATION AGAINST LGBT PERSONS

EDITED BY KAVISHA PATEL AND ELAINA RAHRIG

I. INTRODUCTION.......................................... 527

II. ESTABLISHING EMPLOYMENT DISCRIMINATION TOWARD SEXUAL

MINORITIES & BOSTOCK ................................... 528

A. PRE-BOSTOCK TITLE VII CLAIMS BASED ON SEXUAL ORIENTATION

AND GENDER IDENTITY................................ 528

B. THE BOSTOCK DECISION ............................... 532

III. POST-BOSTOCK DEVELOPMENTS .............................. 533

A. STATE ANTI-DISCRIMINATION STATUTES.................... 533

B. LIMITATIONS AND CHALLENGES TO THE EEOC GUIDANCE . . . . . . . 534

C. CURRENT STATUS OF MILITARY EMPLOYMENT FOR TRANSGENDER

PEOPLE........................................... 535

D. STATE LAWS ON EMPLOYMENT DISCRIMINATION AGAINST

TRANSGENDER PEOPLE ................................ 537

IV. EMPLOYMENT DISCRIMINATION IN HIRING AND TERMINATION . . . . . . . . . 539

A. DISPARATE LEVELS OF PROTECTION BASED ON EMPLOYMENT

SECTOR .......................................... 540

B. BRINGING CLAIMS OF HIRING AND TERMINATION DISCRIMINATION. . 541

1. Failure to Hire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542

2. Wrongful Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

3. Intentional Infliction of Emotional Distress . . . . . . . . . . . 544

V. EMPLOYMENT BENEFITS FOR LGBT PERSONS .... ................ 546

A. THE CURRENT STATE OF EMPLOYMENT BENEFITS FOR FAMILIES

HEADED BY SAME-SEX COUPLES . . . . . . . . . . . . . . . . . . . . . . . . . 546

B. MEDICAL SERVICES FOR GENDER AFFIRMATION TREATMENTS . . . . . 547

C. PAID FAMILY AND SICK LEAVE .......................... 548

VI. CONCLUSION ........................................... 550

I. INTRODUCTION

This Article addresses the current state of legal protections for individuals fac-

ing employment discrimination due to their sexual orientation or transgender

identity. Part II provides an overview of federal laws concerning sexual orienta-

tion and gender discrimination, including the 2020 United States (U.S.) Supreme

Court ruling in Bostock v. Clayton County. Part III examines post-Bostock devel-

opments, including state reactions, limitations, and the state of pre-Bostock prece-

dent. Part IV examines employment discrimination faced by LGBT persons in

hiring and termination. Part V provides a survey of contemporary employment

527

benefits for LGBT persons and medical services for those seeking gender affirm-

ing treatments.

II. ESTABLISHING EMPLOYMENT DISCRIMINATION TOWARD SEXUAL

MINORITIES & BOSTOCK

Title VII of the Civil Rights Act of 1964 established that “it shall be unlawful

employment practice for an employer to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.”

1

Under Price Waterhouse v.

Hopkins, the statute was interpreted to mean that an impermissible consideration of

sex cannot be a motivating factor in an employment practice.

2

To assert a valid sex

discrimination claim under Title VII, the plaintiff must establish a prima facie case

showing that discrimination on the basis of gender could be inferred from the defend-

ant’s conduct. Once that has been established, the burden shifts to the employer to

articulate a legitimate nondiscriminatory reason for its action. If the employer

then meets that burden, the plaintiff must provide evidence that the employer’s

conduct was “more likely than not” based wholly or partially on discrimina-

tion.

3

In 2020, the Supreme Court extended these protections to transgender

employees, holding that “[a]n employer who fires an individual merely for

being gay or transgender violates Title VII” in Bostock v. Clayton County,

thereby creating a uniform system of federal interpretation.

4

Section A of this Part discusses Title VII claims based on sexual orientation

and gender identity prior to Bostock. Section B explains the Bostock decision,

and how it provides a stronger avenue for redress against employers discriminat-

ing against LGBT persons.

A. PRE-BOSTOCK TITLE VII CLAIMS BASED ON SEXUAL ORIENTATION AND

GENDER IDENTITY

Prior to Bostock, LGBT plaintiffs succeeded under Title VII by building on the

sex stereotyping theories of discrimination

5

articulated by the Supreme Court in

Price Waterhouse v. Hopkins.

6

In Price Waterhouse, the Supreme Court signifi-

cantly expanded the traditional definition of “sex” by incorporating discrimina-

tion based on noncompliance with gender stereotypes into Title VII’s prohibition

1. See 42 U.S.C. § 2000e-2(2)(1) (2023).

2. See Price Waterhouse v. Hopkins, 490 U.S. 228, 239–40 (1989).

3. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1108–09 (9th Cir. 2006); see also Menaker v.

Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973)).

4. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1734 (2020).

5. See discussion infra Part II.B.

6. See Price Waterhouse, 490 U.S. at 251 (1989); see also Schroer v. Billington, 577 F. Supp. 2d 293,

300 (D.D.C. 2008).

528 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:527