New Supreme Court Decision: Update on LGBTQ Discrimination in Employment
Title VII is a federal law prohibiting employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. The law covers private and public employers that have 15 or more employees. One unresolved question had been whether Title VII of the Civil Rights Act of 1964 provides protections from discrimination based on sexual orientation or gender identity. Specifically, there had been uncertainty within the federal court system about whether the prohibition of discrimination “because of sex” included protections from discrimination based on sexual orientation and gender identity.
In recent years, three federal appeals courts—2nd Circuit, 6th Circuit, 7th Circuit—found that Title VII provided such protections, while one federal circuit did not—11th Circuit. This split in circuits created a patchwork of laws across the country. To illustrate, if a gay educator in Georgia (11th Circuit) was fired because of his sexual orientation, there were no protections under Title VII, whereas a gay educator in Wisconsin (7th Circuit) would have been protected under the law. Until June of 2020, LGBTQ employees faced similar uncertainty under state law, depending on the state. Prior to the U.S. Supreme Court’s 2019–20 term, only 22 states specifically prohibited discrimination on the basis of sexual orientation and gender identity.
The Supreme Court agreed to examine this issue. Recognizing the significance of the issue before the court, educational organizations such as the National School Boards Association (NSBA), the National Education Association (NEA), the American Federation of Teachers (AFT), and the School Superintendents Association (AASA) came together and submitted a “friend of the court” brief, in which they argued that “applying Title VII’s clear text ensures that public schools and other employers will be able to draw from the broadest pool of qualified talent, regardless of nonmerit-based characteristics. And barring discrimination in public schools ultimately serves the critical interests of protecting students from harassment and enhancing the learning environment.” In June 2020, the court ruled that Title VII’s prohibition of discrimination on the basis of sex includes sexual orientation and gender identity. The court was clear that employees could no longer be fired simply because they were gay or transgender. This decision was significant and has important implications for K–12 educators.
Past Circuit Court Opinions
As discussed in earlier Legal Matters columns, in 2017 the 7th Circuit Court of Appeals—Illinois, Indiana, Wisconsin—decision ruled that discrimination based on sexual orientation is sex discrimination under Title VII. This case was the first time a federal circuit court interpreted Title VII as covering discrimination based on sexual orientation. In Hively v. Ivy Tech Community College, a lesbian adjunct faculty member sued under Title VII, alleging that school officials neither renewed her contract nor hired her for various positions because of her sexual orientation. The court’s majority wrote that if the plaintiff had been dating a man, she would not have undergone the type of discrimination she experienced. Likewise, in March 2018 the full 2nd Circuit—Connecticut, New York, Vermont—held that discrimination on the basis of sexual orientation violates Title VII, in a 10–3 decision.
The 6th Circuit—Kentucky, Michigan, Ohio, Tennessee—examined the law as it applied to discrimination based on gender identity. The court found that an employer unlawfully discriminated on the basis of sex under Title VII when it fired an employee after she informed the company that she would be presenting herself in a manner consistent with her gender identity when working as an undertaker.
To the contrary, the 11th Circuit Court of Appeals—Alabama, Florida, Georgia—in 2017 decided that Title VII does not protect gay and lesbian workers. In a second case out of the same circuit, a court found that Title VII did not protect a child social services coordinator. He had received good performance reviews for over a decade and was allegedly fired after his boss learned that he had joined a gay softball league.
The Supreme Court’s Decision
The Supreme Court heard two arguments involving analogous but not identical issues. Bostock v. Clayton County and Altitude Express Inc. v. Zarda were argued together to determine whether Title VII bans discrimination based on sexual orientation, followed by R.G. & G.R. Harris Funeral Homes v. Equal Opportunity Employment Commission to resolve whether the law prohibits discrimination based on transgender status. Even though the two sexual orientation cases were argued separately from the gender identity case, the court issued one ruling that covered all three cases.
In a 6–3 decision, the court ruled that an employer who fires someone for being gay or transgender violates Title VII. The court reasoned that “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 court observed that “an employer who fires an individual merely for being gay or transgender defies the law.”
What Does This Mean for School Districts?
The Supreme Court has settled this issue and has undoubtedly reshaped the scope of employment law in the United States. This ruling will have an immediate impact across the country, including on schools. Many LGBTQ teachers have long worried about being fired because of their sexual orientation or gender identity. Now, those teachers will be protected under federal law. Schools will need to update their employment policies, including nondiscrimination and antiharassment policies, collective bargaining agreements, and any other related policies to ensure that protocols and practice adhere to the court’s decision and protect the rights of LGBTQ employees. As school districts consider next steps, they might consider turning to leading experts and national resources such as the Human Rights Campaign, the Transgender Law Center, and GLSEN (formerly the Gay, Lesbian & Straight Education Network). Educational leaders should also be on the lookout for updates from professional organizations such as NASSP, NEA, AFT, NSBA, and AASA.
Overall, the Bostock decision marks a significant moment in history, and the decision will likely have far-reaching implications. Although the court provided clarity regarding Title VII and employment discrimination, several lingering legal issues remain. For example, the court did not address federal protections related to health care, housing, education (e.g., bathrooms, athletics, dress codes), child welfare (e.g., adoption), or religious exemptions. Similar to Title VII, many state and federal laws prohibit sex-based discrimination. As such, it will be important for educators to keep these related legal issues on their radar because these issues similarly touch on the lives of students, employees, and families in profound ways.
Suzanne E. Eckes is a professor at Indiana University in Bloomington, IN, a co-author of Principals Avoiding Lawsuits, and a past president of the Education Law Association. Maria Lewis is an assistant professor in the Education Policy Studies department at Pennsylvania State University and an affiliate law faculty at Penn State Law in University Park, PA, focusing on education law and policy, particularly as it relates to equity and diversity.
Bostock v. Clayton Cty., 723 Fed. Appx. 964 (11th Cir. 2018).
Bostock et al. v. Clayton Cty., 2020 U.S. LEXIS 3252 (2020).
Brief for the National Education Association et al., Nos. 17-1618, 17-1623, & 18-107 (2019).
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Comm., 884 F.3d 560 (6th Cir. 2018).
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017).
GLSEN (n.d.) Retrieved from www.glsen.org.
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017).
Human Rights Campaign (n.d.). Transgender inclusion in the workplace: recommended policies and practices. Retrieved from www.hrc.org/resources/transgender-inclusion-in-the-workplace-recommended-policies-and-practices.
Human Rights Campaign (2020). State map of laws and policies. Retrieved from www.hrc.org/state-maps/employment.
National Education Association (2020). Pride wins: LGBTQ rights victory resources. Retrieved from neaedjustice.org/pridewins.
Transgender Law Center (n.d.). Resources: Employment. Retrieved from transgenderlawcenter.org/resources/employment.
Altitude Express Inc. v. Zarda, 883 F.3d 100 (2d Cir. 2018).