Symposium: The strength of the written word fulfills Title VII’s promise
on Jun 15, 2020 at 6:32 pm
Sarah Rice is an assistant attorney general for the state of Maryland, which joined an amicus brief on behalf of 21 states and the District of Columbia in support of the employees in Bostock v. Clayton County and Harris Funeral Homes v. EEOC.
In affirming that Title VII’s broad scope prohibits discrimination on the basis of sexual orientation and gender identity, the Supreme Court immediately ended a form of stigmatic injury suffered by millions of citizens who identify as lesbian, gay, bisexual, or whose gender identity differs from their sex assigned at birth. The question whether the phrase “because of … sex” means what it says in the context of employer actions prohibited by Title VII has been definitively answered—it does. That is, because sexual orientation and gender identity cannot be explained as traits that someone has without making reference to the sex of the person, discrimination based on sexual orientation or gender identity is also because of an individual’s sex. The Supreme Court also once again concluded that it makes no difference under the text of Title VII whether an employer intended also to discriminate based on an additional reason, like motherhood or the identity of one’s spouse, if sex is a basis for the decision. And, for characteristics like motherhood or sexual orientation, to which sex is always linked, it is no excuse to call sex-based discrimination by another name. Discrimination “because of … sex” is simply prohibited. With that legal uncertainty removed, gone too is the practical uncertainty faced by real individuals weighing questions of whether to make career moves, geographic moves or moves to reveal aspects of their personal lives by openly sharing their authentic selves at work.
The opinion in Bostock v. Clayton County fulfills the best promises of textualism. The Supreme Court’s confirmation that all people have the right to be given the full measure of protection afforded to them by laws having meaning anchored in the written word is a powerful statement about the enduring power of people-led movements. Nondiscrimination efforts have long been achieved through legislation. States have often led the way in expanding nondiscrimination protections in public accommodation and employment to protect newly recognized forms of discrimination. Maryland, along with 20 other states and the District of Columbia, expressly prohibits employment discrimination based on sexual orientation and gender identity through statute or regulation. Title VII now definitively joins these statutes in prohibiting all forms of discrimination based on sex, including discrimination based on traits like sexual orientation and gender identity that cannot be separated from an individual’s sex. The Bostock decision affirms that citizens may rely on the achievement of broad legislative protections against discrimination to provide long-lasting victory.
Importantly, the confirmation of Title VII’s sweep immediately cements protections for federal government workers, no matter their state of residency, and for individuals who work in states that have not yet specifically prohibited discrimination on the basis of sexual orientation and gender identity. In those states, LGBT workers facing discrimination may now bring complaints under Title VII to directly improve their own working conditions.
Other benefits will accrue over time. As Maryland and the 20 states and District of Columbia set forth in their amicus brief, discrimination is expensive. Reducing salary disparities, health care instability and increased health care costs due to the mental health effects of stigmatic discrimination will immediately benefit individuals and the states that care for them. There is also a body of evidence demonstrating that private industry benefits from reducing discrimination because of the increased creativity and productivity LGBT people bring to the workplace when they are included and when they are freed from the health effects of stigmatization. LGBT individuals and their families benefit from better working conditions, and so do states, which experience decreased use of their public benefits system and increased tax revenue as a result of increased innovation and productivity.
To see these benefits materialize, nondiscrimination laws must be enforced. The outcome in Bostock ensures that important relationships between the state and federal governments are maintained and grow. Even for the states that already have other statutory prohibitions on sexual-orientation and gender-identity discrimination, the EEOC and state governments work hand in hand to bring discriminatory employers into compliance. The EEOC has used its special investigation and enforcement authorities in a number of actions combatting sexual-orientation and gender-identity discrimination under Title VII. States and the EEOC have traditionally strategically allocated resources and cooperated in many ways, including formal joint enforcement actions and collaborative investigations, to enforce nondiscrimination laws throughout the country. Maintaining this close partnership in the area of sexual-orientation and gender-identity discrimination will ensure that best practices continue to evolve.
Bostock did not answer all potential questions about the experience of working LGBT people and the law. Questions remain about some practical details of workplace life and also about whether and how the rights of religious employers will interact with nondiscrimination laws in the future. But with Title VII held to its promise to ensure a world free of employment discrimination “because of … sex,” a new reality is possible for the millions of LGBT citizens who await it.