There are many employment laws enacted in the US to protect workers against discrimination and harassment at the workplace. If they are broken, employees are awarded damages by the courts to compensate their loss and deter employers from engaging in further illegality. In addition to laws, court rulings are critical in the interpretation and applicability of regulations in the nation. More specifically, Supreme Court judgments serve as references in other federal, state, and local courts. In this essay, the Bostock v. Clayton County decision is discussed to highlight this court’s explanation of Title VII of the Civil Rights Act of 1964. The impacts and unexpected applications of the law are explored to position Supreme Court decisions at the center of federal discrimination litigations in the country. For example, the judgment has been applied to stop the meaning of ‘sex’ in Section 1557 of the Affordable Care Act that was introduced by Trump’s administration. Another unexpected outcome is the strengthening of textualism in interpreting statutes.
The essay also discusses the three major laws that protect workers against sex discrimination, including Title VII, Equality Pay Act, and Pregnancy Discrimination Act. Since explicit federal laws protecting LGBTQ+ employees do not exist, rules, regulations, and court rulings are explored. Same-sex harassment is also not expressly covered in federal employment laws. However, the essay highlights various court judgments that have been established on the basis of lawsuits for same-sex harassment. The foundational ruling being the Oncale v. Sundowner Offshore Servs that was made in 1998 and established three requirements for a successful lawsuit.
Bostock v. Clayton County, Ga 140 S. Ct 1731 (2020)
Bostock v. Clayton County was a national court judgment that ruled on the use of Title VII in protecting employees from discrimination founded on sex and sexual orientation. It included three cases consolidated into one and all related to similar LGBTQ+ issues. The individual cases were Bostock v. Clayton County, Altitutde Express, Inc. v. Zarda, and R. G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. In the first case, a gay man called Bostock Gerald was dismissed from work after playing in a gay softball club for what the employer described as “conduct unbecoming of a county employee” (Valenti, 2021). In the second case, Donald Zarda was suing his employer following a dismissal resulting from his gender orientation revelation to a customer. He was fired immediately after informing a shopper that he was gay. The third case involved an employee who reported to the employer that she would be presenting as a woman after a sex-changing surgery, leading to her sacking.
All the employees here sought defense against gender discrimination grounded on Title VII of the 1964 Civil Rights Act. The Supreme Court judges had to decide if discrimination due to sex, as provided for by Title VII, included sexual orientation and identity. The court ruled that Title VII covers sexual orientation and gender identity because discriminating or dismissing an employee for transgender or homosexual reasons is a decision founded on sex that is forbidden by the law.
Bostock v. Clayton has had far-reaching impacts in the federal law context and on state laws. According to Bachman (2021), while 49 American countries have acts covering gender or sex discrimination, 27 states lack explicit anti-discrimination decrees grounded on sexual orientation and gender identity Bostock changed how states enforce anti-discrimination laws related to gender and sex. Several states, including Texas, Kansas, Nebraska, Florida, Arizona, Pennsylvania, and North Dakota, adopted the Bostock ruling before others. For instance, Texas applied Bostock’s ruling on Tarrant County. Coll. Dist. V. Sims includes sexual orientation, and gender identity under the Texas Commission on Human Rights Act (TCHRA) (Bachman, 2021). Florida publicized that it would apply the Bostock ruling when investigating sex discrimination cases to cover transgender and homosexual persons.
Adopting Bostock v. Clayton by states will broaden the protection of LGBTQ+ rights because state laws are more protective than Title VII. For example, while Title VII relates only to businesses with a minimum of 15 workers, state employment laws include employers with fewer people, including in Pennsylvania, Arizona, North Dakota, and Arkansas (Bachman, 2021). Employees may also recover more in damages from smaller employers in states that do not have a compensatory cap on private employers, such as Florida. This is not likely under Title VII, which has a minimum of $50,000 and a possible maximum of $300,000 (Bachman, 2021). Therefore, Bostock’s adoption by the states offers more benefits to the LGBTQ+ workforce than Title VII.
Nevertheless, the court decision in Bostock v. Clayton has faced its share of controversy and objections. Some religious groups have come forward to argue that Bostock goes against employers’ religious freedom. Some employers do not hire LGBTQ+ individuals based on their religious beliefs. Christian groups have filed a lawsuit following this argument in the U.S. Pastor Council et al. v. Equal Employment Opportunity Commission in Texas’ Northern District (Bachman, 2021). The plaintiffs demand a faith-based exclusion from Bostock as the Religious Freedom Restoration Act and First Amendment cover their rights.
Beyond employment, Bostock v. Clayton County judgment has been applied to education and healthcare discrimination cases. The Fourth Circuit decided on a Title IX lawsuit that discriminating an individual due to transgender or homosexual status equates to discrimination based on sex, as mentioned in Bostock. According to Tuten (2021), a teenager had sued a school board for forcing transgender students to use private restrooms (Tuten, 2021). The judges ruled that preventing transgender students from using bathrooms corresponding to individual gender identities discriminates them based on sex.
In healthcare, Bostock’s ruling has led to the suspension of the discriminatory Trump-era policies of the Affordable Care Act. Section 1557 of the act interpreted sex as ‘biological sex,’ leaving the LGBTQ+ community uncovered (Post et al., 2020). Various judges issued injunctions to the rule because it directly violates Supreme Court’s ruling in Bostock. President Biden also issued an executive order to apply Bostock’s decision to the Fair Housing Act, Title IX, and section 412 of the Immigration and Nationality Act. The judgment had foreseen these developments and conflicts as the dissenting Justice Alito noted that it would affect over 100 other federal statutes prohibiting discrimination because of sex.
From a different perspective, Bostock’s decision has marked the success of progressive textualism in the legal fraternity. The judgment and dissent were written by textualism interpretation of Title VII. Prior to Bostock, textualism has been perceived as overly rigid, insensitive to Congress workings, and too malleable, as argued by Lund (2020). The question of whether discrimination of transgender and homosexuals was ‘because of … sex’ according to Title VII has been under critical study over the years. The plaintiffs in Bostock v. Clayton County seemed to be favored by the text of Title VII. In this decision, textualism emerged as significant in delivering such a progressive outcome. Nevertheless, the ruling also exposed differences and tensions existing within textualism as the majority opinion applied formalistic while dissenting view used flexible textualism (Lund, 2020). Irrespective of which textualism approach was used, Bostock’s judgment shows how focusing properly on statute text can produce positive results.
Sex or LGBTQ+
Gender or sex discrimination leaves victims unable to get an education, housing, work, or engage in life activities like every other free citizen. There are federal and state laws that protect individuals against such discrimination by giving them equal opportunities in the country. Title VII of the Civil Rights Act of 1964 is the basic law protecting employees from gender discrimination. The law bars companies from discriminating against staff founded on religion, sex, race, nationality, and color. It applies to private, government, and nongovernmental employers or organizations with 15 or more workers (Player & Sperino, 2017). This law offers a level playing field for the protected groups during resume or applications screening, interviewing, testing, promotions, and other employment activities. The question as to whether LGBTQ is also protected under Title VII was recently answered in Bostock v. Clayton County.
Another law that advocates for sex equality and fights against gender discrimination are the Equality Pay Act of 1963 (EPA). The law stipulates that men and women working in substantively equal jobs should receive equal compensation. EPA aimed to abolish the gender gap pay that saw women receive considerably lower wages when compared to men in the same positions. Unequal salaries were justified by higher turnover rates among female employees, women’s inability to work night duties voluntarily or as required by law, and limited weight lifting capabilities. According to Sanfey et al. (2017), the EPA mandates women to get equal wages as men when the working conditions, skills, efforts, and responsibilities carried out are the same. Women who feel unfairly compensated must prove in court that the jobs are substantively equal and that they are paid less.
The Pregnancy Discrimination Act of 1978 (PDA) is also a law that offers protection against sex discrimination. The law forbids employers from discriminating against women due to childbirth, pregnancy, or medical conditions related to these. When women cannot work due to childbirth or pregnancy-related conditions, employers are to treat them as temporary disability cases. This consideration requires the employee to receive disability or unpaid leave, light duties, or alternative work assignments. The Family and Medical Leave Act of 1993 (FMLA) supports pregnant women by providing maternity leave of up to 12 weeks for new parents, whether a biological or adoptive child (Sanfey et al., 2017). While there are many laws that indirectly prevent sex discrimination at work, Title VII, EPA, and PDA are the most applicable.
Although the majority of American citizens and lawmakers oppose LGBTQ+ discrimination, there are no federal laws ruling out unfair treatment founded on sexual orientation and gender identity basis. However, federal agencies and courts are using existing statutes to establish LGBTQ+ protections. The Equality Act bill of 2019 was introduced to expand Bostock’s provisions on LGBTQ+ protections (Burt, 2020). However, House Republicans voted the bill down, claiming that it infringed on religious freedom. Nevertheless, the majority of Democrats passed the bill in the lower chamber. The likelihood of the bill passing Senate is uncertain as Republicans account for half of it, and the bill would require 60 votes. As such, there is no explicit federal law that protects LGBTQ+ against discrimination in employment, housing, or education.
Government agencies and courts have made significant steps to protect LGBTQ+ employment rights. In 2010, Obama’s administration provided LGBTQ+ protection by designating gender identity as part of the classes sheltered against discrimination by the Equal Employment Opportunity Commission (EEOC) (Benharris, 2022). The commission also categorized discrimination grounded on gender identity as discriminating on a sex basis in 2012. Executive Order 13672, signed by President Obama in 2014, included gender identity in anti-discrimination protections in federal civilian workforce recruitment and both sexual orientation and identity for contractors and subcontracts dealing with the federal government. Through Executive Order 13087, Bill Clinton had also banned discrimination founded on sexual orientation within the national civilian staff, not including the military (Benharris, 2022). These protections have formed the foundation for LGBTQ+ anti-discrimination in employment.
Having no explicit federal law protecting LGBTQ+ employment rights made the Bostock v. Clayton County a significant and landmark Supreme Court ruling for sexual orientation and identity issues. The ruling expressly allows the LGBTQ+ community to demand fair hiring, training, promotion, or firing processes under Title VII. The judgment also means that employers cannot reject applicants or lay off personnel because of sexual orientation or gender identity.
Same-Sex Harassment
The Civil Rights Act of 1964 forbids sexual aggravation in firms with a minimum of 15 workers. The EEOC has also built a large compilation of guidelines and principles to thwart office sexual harassment. The Title VII of the Civil Rights Act also identifies same-sex harassment as a violation because it is related to one’s sex. The Fair Employment and Housing Act (FEHA) offers better protection for same-sex aggravation because complainants do not necessarily have to ascertain that they were sexually desired. FEHA requires one to prove that harassment was the result of one’s sex. Some conduct that is categorized as harassment includes sexual advances, vulgar language, requesting sexual favors, and every behavior motivated by gender or sex. The courts have made judgments that indicate same-sex harassment as illegal and actionable under Title VII.
One case that protected a victim against male to male sexual harassment was the Oncale v. Sundowner Offshore Servs in 1998. The employee had been sexually harassed by male co-workers in front of other employees and received a rape threat (Oludare & Lenjo, 2021). When he brought the complaint to his employer, management did not act, forcing him to leave the job in fear of rape or being forced into having sex. The court declared that Title VII does not stop anyone from suing same-sex harassment cases provided violations are centered on sex. Oncale won the lawsuit since the aggravation was so pervasive and severe that he was unable to do his job. The court also held that showing preferential treatment on a sexual basis was unlawful following Title VII. Sexual harassment cases covered under Title VII should be incidental or isolated.
The Supreme Court, through the Oncale case, established three criteria for a same-sex harassment case. First, there must be proof that the aggravator is homosexual and clear proposals were made for sexual activity (Oludare & Lenjo, 2021). Secondly, the plaintiff has to prove that the harasser showed general hostility to same-sex employees in the workplace. Thirdly, comparative evidence must be presented for how the harasser behaves in a mixed-sex environment.
Another form of same-sex harassment involves gender stereotyping over how males or females are to behave. However, such conduct should be distinguished from sexual orientation discrimination, which is not explicitly covered by the law. When a male employee is harassed for not being masculine enough or for showing femininity, he can sue under Title VII; similarly, for women mistreated for being too masculine. In Nichols v. Azteca Rest. Enterprises, Inc., a male worker was harassed for carrying a plate ‘like a girl’ and often addressed as ‘she’ and ‘her’ by co-workers (Mendes, 2021). The court ruled that the behavior qualified as sexual aggravation because it was founded on gender stereotyping. In the case Price Waterhouse v. Hopkins, the judges decided in support of Ann Hopkins, who was differentiated against due to sex stereotyping (Mendes, 2021). The employer required her to behave more like a woman and conduct herself with less masculinity to qualify for partnership.
The Fourth Circuit broadened Oncale’s three criteria in Roberts v. Glenn Industrial Group, Inc. Chazz Roberts had sued his employer for sexual harassment and retaliatory sacking from his immediate supervisor. The supervisor called Roberts ‘gay,’ physically assaulted him, and used derogatory and sexually explicit language on him. Since they were both men, the case qualified under same-sex harassment and involved discrimination based on sex, as explained in Title VII.
Conclusion
Federal anti-discrimination laws offer universal protection to employees in every state. Although state laws on the same issue might be different, federal regulations ensure that employees get equal protection in every state. The Supreme Court’s judgment in Bostock v. Clayton County marked the beginning of a journey to protect the rights of LGBTQ against discrimination explicitly. Over a year after the judgment, sexual orientation and gender identity have become synonymous with ‘sex’ as referred to in Title VII and other federal laws. Textual interpretation of statutes could allow broader access to anti-discrimination legal protection for homosexuals, lesbians, and transgender people.
Sex discrimination is prohibited expressly by law for establishments with no less than 15 personnel. Some rules, such as Title VII, supports lawsuits where such employers do not prevent sexual discrimination in their workplace. Joe Biden’s administration is committed to adding sexual orientation and gender identity under these protections. From his initial day in administrative duty, President Biden has reversed most of Trump’s rules and orders that isolated LGBTQ groups. For instance, he has supported Bostock’s ruling by requiring government bodies to apply judgment when dealing with transgender people and homosexuals. The Title VII statute also covers same-sex harassment to protect gender identity.
Moving forward, lawmakers must stabilize LGBTQ protection through an act of parliament or constitutional amendment. This approach will foster confidence in members of this group and will be free to interact and execute their duties like their counterparts. However, Christian groups’ views must be factored in to protect their rights and religious freedom. For instance, the Equality Act bill 2019 can be amended to provide exemptions to religious employers who might not hire homosexuals and lesbians due to faith restrictions. Having an express law on LGBTQ discrimination will factor every one’s concerns and prevent conflicting outcomes, as seen in Bostock’s ruling outcome.
References
Bachman, E. (2021). The Bostock decision one year later: How LGBTQ+ employment discrimination laws are evolving. Forbes. Web.
Benharris, L. A. (2022). The LGBTQ+ movement towards equity: Historical perspectives and social justice implications. In Research anthology on inclusivity and equity for the LGBTQ+ community (pp. 1-12). IGI Global.
Burt, C. H. (2020). Scrutinizing the US Equality Act 2019: A feminist examination of definitional changes and sociolegal ramifications. Feminist Criminology, 15(4), 363-409. Web.
Lund, N. (2020). Unleashed and unbound: Living textualism in Bostock v. Clayton County. Federalist Society Review, Forthcoming, 20-15. Web.
Mendes, O. (2021). Gender-neutral pronouns: They are here to stay. Seton Hall Law Review, 52(1), 317-346. Web.
Oludare, A., & Lenjo, J. L. J. (2021). Oncale v. Sundowner (1998). Sexual Harassment and Misconduct: An Encyclopedia, 225.
Player, M., & Sperino, S. (2017). Federal law of employment discrimination in a nutshell. West Academic.
Post, A., Stephens, A., & Blake, V. (2020). Sex discrimination in healthcare: Section 1557 and LGBTQ rights after Bostock. California Law Review Online, 11, 545. Web.
Sanfey, H., Crandall, M., Shaughnessy, E., Stein, S. L., Cochran, A., Parangi, S., & Laronga, C. (2017). Strategies for identifying and closing the gender salary gap in surgery. Journal of the American College of Surgeons, 225(2), 333-338. Web.
Tuten, B. T. (2021). After Bostock: 11th Circuit extends landmark case and strikes down school’s transgender bathroom policy under Title IX and the Equal Protection Clause. Mercer Law Review, 72(2), 9. Web.
Valenti, A. (2021). LGBT employment rights in an evolving legal landscape: The impact of the Supreme Court’s decision in Bostock v. Clayton County, Georgia. Employee Responsibilities and Rights Journal, 33(1), 3-23. Web.