The employment law landscape in the Commonwealth of Virginia and elsewhere nationally continues to evolve. On June 15, 2020, the Supreme Court held in Bostock v. Clayton County that federal law prohibits employment discrimination against LGBTQ workers. In a majority opinion authored by Justice Gorsuch and joined by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan, the Court found that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
Gerald Bostock worked for Clayton County, Georgia as a child welfare advocate. He was an exemplary employee as evidenced by the Clayton County winning national awards for his work. After a decade of employment with the County, Mr. Bostock began playing in a gay softball league. When influential members of the community found out, they began making disparaging comments about Mr. Bostock’s sexual orientation and his participation in the league. Shortly thereafter, in an all too familiar scenario for many LGBTQ persons, Mr. Bostock was fired for conduct “unbecoming” a county employee.
On appeal from the Eleventh Circuit, which decided that Mr. Bostock’s suit could be dismissed as a matter of law because Title VII does not prohibit employers from firing employees for being gay, the Supreme Court decided to resolve the split between Circuits regarding that question once and for all. The 6-3 Bostock opinion came from a surprising source. President Trump appointed Justice Gorsuch to succeed the late Justice Antonin Scalia on April 10, 2017. He is one of the more conservative members of the Court and was not thought to be an outspoken ally of the LGBTQ community. However, Justice Gorsuch is a proponent of “textualism,” which is the belief that a law’s meaning turns not on the intentions of its drafters, but on its words alone. Justice Gorsuch noted that Title VII prohibits discrimination based on sex and “[a]n employer who fires and 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 undistinguishable role in the decision, exactly what Title VII forbids.”
Before Bostock, the explicit law in many Circuits including the Fourth Circuit was that Title VII did not protect against discrimination based on sexual orientation. Practitioners who wanted to bring such claims had to bring them under the auspices of gender stereotyping rather than sexual orientation.
After July 1, 2020, employees in Virginia may bring state law actions for discrimination based on sexual orientation and sexual identity. Now thanks to Bostock, employees in Virginia may bring similar claims under Title VII in federal court.
