Until this week, laws in a majority of U.S. states permitted some form of employment discrimination based on sexual orientation or gender identity. That was no oversight on the part of state legislatures or the U.S. Congress. It was instead the product of virulent right-wing opposition to the recognition of the fundamental rights of members of the LGBTQ+ community. Not only did they oppose laws to protect against discrimination, they raised untold millions of dollars over the years boasting about it and used anti-gay ballot initiatives as a tool to inflame passions and draw out arch-conservative voters.
On Monday, the law changed – dramatically, sweepingly, historically – when the U.S. Supreme Court made clear that in this respect the 1964 Civil Rights Act's anti-employment discrimination provisions mean exactly what they say. The Court's ruling in Bostock v. Clayton County, Georgia makes clear that it is illegal to base employment decisions – hiring and firing, the allocation of work, the grouping of employees, compensation practices, harassment – on sexual orientation or identity. The prior patchwork of state laws – most of which permitted some type of employment discrimination based on orientation or identity – is no more. It is now the law of the land that an employer cannot fire or otherwise discriminate against an individual because they are lesbian, gay, or transgender. This is monumental news at any time and especially welcomed during Pride Month.
The case arose under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. The question before the Court was “whether an employer can fire someone for being homosexual or transgender.” The Court stated, “The answer is clear. An employer who fires an individual for being homosexual or transgender 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.”
The question came before the Court from three separate lower court decisions. Gerald Bostock was an award-winning child welfare advocate in Clayton, Georgia. He was fired for “conduct ‘unbecoming’ a county employee” when the county learned that he was a member of a gay recreational softball league. Donald Zarda was a skydiving instructor in New York for a company called Altitude Express. He was fired days after mentioning to his employer that he was gay. And Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Michigan. She was fired when she wrote to her employer explaining that, upon returning from vacation, she would “live and work full-time as a woman.” Tragically, Zarda and Stephens passed away before the case concluded and did not get to celebrate their contributions to advancing LGBTQ+ rights.
The Court’s opinion is a huge, and long overdue, victory for the plaintiffs, the LGBTQ+ community, and society as a whole. It represents another step forward for recognizing the rights of all Americans, no matter their sexual orientation or gender identity. Bostock, Zarda, and Stephens were simply trying to work hard and earn a living. Their sexual orientation or gender identity had nothing to do with their job performance. They should have never needed to hide their sexual orientation or gender identity in order to earn a paycheck, or for any other reason. Now, finally, an employer can no longer require LGBTQ+ Americans to hide who they are to keep their jobs.
In addition to the broader social justice gains, the Court’s decision could have huge benefits from a worker health perspective. According to a 2018 report by the Human Rights Campaign, 46 percent of LGBTQ+ workers chose to remain closeted at work. Their topline concerns were the possibility of being stereotyped, feeling uncomfortable, and losing connections or relationships with coworkers, as well as the fear that their coworkers would think they were attracted to them. LGBTQ+ workers also reported feeling distracted at work, feeling exhausted from spending time and energy hiding their sexual orientation and gender identity, avoiding special work events or certain people, and feeling unhappy or depressed at work. Fear of discrimination in the workplace can contribute to chronic stress, which a growing body of research has linked to cardiovascular disease, autoimmune disorders, and mental health issues. This week’s decision will hopefully provide some relief from these stressors, which could have positive implications beyond the important progress made on moral grounds.
Still, much work remains to secure equal rights for the LGBTQ+ community. A history of oppression and exploitation cannot be rectified by one court decision. Employers and workers across the country need to come together now to embrace their coworkers and create a safe, welcoming workplace culture free from discrimination. More broadly, as we face mass protests calling for racial justice and the COVID-19 pandemic, both of which bear the marks of discrimination, and a president determined to roll back transgender rights, we must keep fighting discrimination at all levels, inside and outside the workplace.