Celebrating the First Anniversary of Bostock v. Clayton County

June 15, 2021

By Alex Allam*

This Pride Month, we celebrate the first anniversary of the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County. One year ago, the Court ruled that Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, also bars workplace discrimination because of sexual orientation or gender identity.

Bostock v. Clayton: A Legal Overview

In a 6-3 decision, Justice Neil Gorsuch, one of the most conservative Justices on the Court, delivered the majority opinion. He focused on the text of Title VII, which makes it unlawful to discriminate against any job applicant or employee “because of such individual’s … sex.”

Gorsuch reasoned that an employee’s sex is unavoidably part of the employer’s decision to fire a worker because of their sexual orientation or gender identity. The Bostock opinion offered two specific examples. Let’s say there are two employees, a man and a woman, both of whom are attracted to men and both of whom are equally diligent employees. If the employer fires the man because he is attracted to men, a trait the employer accepts with respect to the female employee, the employer is discriminating against the male employee solely on the basis of the male employee’s sex. Likewise, if an employer fires a transgender person who is assigned male at birth but now identifies as female while retaining a female employee who was assigned female at birth, the only difference is the sex to which the employee was assigned at birth.

Justice Gorsuch acknowledged that his interpretation of Title VII might reach further than its drafters in 1964 anticipated. But when applied to cases like Bostock, he argued, the statute’s plain language did not permit any other reading.

Another Milestone for the LGBTQI+ Community

The Bostock decision was a huge victory for members of the LGBTQI+ community, many of whom worried about job security if they chose to come out at work.

I myself breathed a sigh of relief following the Bostock decision. There was a time in my life that I really wanted to pursue a job in the financial sector. I used to be a trader in securities, and I often dreamed of being one of those “Wall Street” type of guys. But I dreaded the kind of “fratty” type of toxic masculinity that was infamously associated with this kind of work environment. I knew these types of men from high school and college, and I remembered the times I had derogatorily been called “queer” and a “f*g**t.” In the end, I was discouraged from pursuing this path long term because I did not want to subject myself to that kind of workplace environment.

My decision was validated when, at a resume and interview workshop, I was told that if I were to pursue finance or securities law, I needed to be more “masculine” and that I sounded too “femme” for this field. Of course, I was heartbroken upon hearing this “advice” but I accepted it at the time as the “reality.”

While California law has long protected LGBTQI+ workers against workplace discrimination, the Bostock decision still changed something for me. I stopped trying to deepen my voice during interviews, and I felt more encouraged to pursue the fields that most interested me. I was encouraged that federal law was on my side.

The Bostock decision was personal to me, but also has important implications for the broader LGBTQI+ community. The Williams Institute reported in July 2020 that there are over 11 million adults in the U.S., or 4.5% of the population, who identify as LGBTQI+. Of that total, over a million individuals identify as transgender, over 200,000 of whom live in California. The Bostock decision extends legal protection to all of us.

 The work is done… Right?

Still, the work is not quite over. The Bostock decision has given us the much-needed protection against discrimination and harassment in the workplace for members of the LGBTQI+ community, but this new interpretation of the law did not change social norms in just a year.

Bostock gave us a tool, but it is up to us to use it. We need to ensure that the LGBTQI+ anti-discrimination law on the books translate to a better lived reality on the ground. In particular, we must focus on safeguarding the rights of low-wage LGBTQI+ workers and workers in rural areas, who have limited access to legal representation. We must also stand with trans and non-binary workers, who are too often subjected to severe and pervasive misgendering and “deadnaming” in the workplace, among other indignities.

At Legal Aid at Work, we are committed to enforcing Bostock and related laws through direct representation, community education, and administrative and policy advocacy. We are actively partnering with local LGBTQ+ community groups, such as The Source LGBT+ Center, the Fresno Spectrum Center, and the Fresno EOC LGBTQ+ Resource Center, to conduct know-your-rights trainings and to connect with clients facing workplace discrimination, and we’re continuing to expand our outreach to serve the broader San Joaquin Valley LGBTQI+ community.

In thinking about the work ahead, it is also worth noting that tomorrow (June 16) is LGBTQI+ Equal Pay Day. In recent reporting, lesbians still earn 21% less on average compared to straight women. Gay men make about 10% to 30% less than their straight male counterparts. Bisexual women earn 30% less on average. Meanwhile, trans people are 4x more likely to make less than $10,000 a year than the general population – 15% vs. 4%. Further, a 2019 report from the Williams Institute found that 1 in 5 LGBTQI+ people in the United States live in poverty compared to 1 in10 of their heterosexual/cisgender peers.

Bostock was a momentous victory and a big step towards a more equitable society. As we commemorate the first anniversary of this landmark decision, we must bear in mind the remaining work to achieve full equality for the LGBTQ+ community.

 

*Alex Allam is a law clerk at Legal Aid at Work and a rising third-year law student at U.C. Hastings School of Law.

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