Protecting Against Sex Discrimination in a Post-Bostock World, 1121 SCBJ, SC Lawyer, November 2021, #30

• Author: BY AARON WALLACE
• Position: Vol. 33 Issue 3 Pg. 30

Protecting Against Sex Discrimination in a Post-Bostock World

No. Vol. 33 Issue 3 Pg. 30

South Carolina BAR Journal

November, 2021

BY AARON WALLACE

Introduction

For employers with 15 or more employees, Title VII of the Civil Rights Act of 1964^[1] serves as a “watchdog” against unlawful discrimination on the basis of race, color, sex, religion or national origin. The Act is distinct from other acts that protect employees against unlawful discrimination on the basis of disabilities (i.e., the Americans with Disabilities Act^[2]) or age (the Age Discrimination in Employment Act^[3]) .

On June 15, 2020, the United States Supreme Court (SCOTUS) issued a decision that reverberated throughout the LGBTQ community and the business community at large. In the landmark case of Bostock v. Clayton County, SCOTUS held that gender identity and sexual orientation status is protected under the larger umbrella of Title VII’s protections against sex discrimination.^[4] The Court resolved a circuit split concerning the applicability of Title VII’s protections as applied to gay and transgender individuals. Prior to Bostock, the federal circuits were divided on the question of whether Title VII’s protections prohibit discrimination on the basis of sexual orientation. On April 29, 2014, the Equal Employment Opportunity Commission (a federal agency tasked with enforcing Title VII’s provisions) issued guidance in a memorandum that interpreted Title VII’s sex discrimination prohibition as applying to discrimination based on gender identity and sexual orientation.^[5] However, prior to the Supreme Court’s decision in Bostock, this guidance was not universally accepted by the federal circuits. Post-Bostock, these protections have been extended to all people working for employers with 15 or more employees regardless of their gender identity or sexual orientation.

Bostock analysis

Bostock was an amalgamation of three separate cases that evidenced the split among the federal circuits. Each of the cases involved a gay or transgender employee who brought suit under Title VII alleging unlawful discrimination on the basis of sex. Altitude Express, Inc. v. Zarda, 883 F.3d 100 (2d Cir. 2018), as well as R.G. & G.R. Harris Funderal Homes Inc. v. Equal Employment Opportunity Commission, 884 F.3d 560 (6th Cir. 2018), were cases decided in the Second and Sixth Circuits respectively that became part of the Bostock analysis. While both the Second and Sixth Circuits ruled in favor of the employees, the Eleventh Circuit decided in favor of the employer and against the employee, Mr. Bostock. In Bostock, the Supreme Court analyzed the rationale underlying the Eleventh Circuit’s ultimately erroneous interpretation of Title VII and provided a great deal of instruction on the issue of the interpretation of sex discrimination under Title VII.

Specifically, the Court in Bostock dealt with a scenario where Gerald Bostock worked for Clayton County Georgia as a child welfare advocate. Bostock’s superb work resulted in national awards for the county. Mr. Bostock worked for the county for 10 years, but the county terminated his employment shortly after he participated in a gay recreational softball league. The animus against Mr. Bostock was evidenced by disparaging remarks made by community members regarding Mr. Bostock’s sexual orientation and participation in the softball league. The county’s reason for terminating Mr. Bostock’s employment was for conduct “unbecoming” of a county employee.

Mr. Bostock brought suit alleging unlawful discrimination on the basis of sex under Title VII. The Eleventh Circuit held that “the law does not prohibit employers from firing employees for being gay and so his suit should be dismissed as a matter of law.”^[6] Mr. Bostock appealed to the SCOTUS and, while deciding Bostock, the Court granted certiorari in the Zarda and R.G. & G.R. Harris Funeral Homes matters to resolve the split among the circuits.

Ultimately, SCOTUS decided the case based on the plain language of the statute. Initially, the employees contended that the term...