Last month, the Supreme Court of the United States (SCOTUS) handed down a 6-3 ruling in Bostock v. Clayton County. The central finding from SCOTUS was that Title VII of the 1964 Civil Rights Act protects employees based on their sexual orientation and/or gender identity. Put more simply, an employer cannot fire an employee simply for identifying as a LGBTQ+.
Justice Neil Gorsuch authored the majority opinion. This language is taken from the Syllabus of the ruling, with Gorsuch relying on legal understandings of “sex” and “sex discrimination”:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.
Justice Samuel Alito authored a dissent and was joined by Justice Clarence Thomas. Alito argued that Congress in 1964 did not intend to include protections based upon sexual orientation and gender identification, noting: “Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.” In another dissent, Justice Brett Kavanaugh cited constitutional separation of powers, noting that it was “Congress's role, not this Court's, to amend Title VII.”
It is an interesting quirk of history that such a landmark SCOTUS ruling toward LGBTQ+ equity was handed down during Pride Month, a time to reflect on how far LGBTQ+ rights have come, to celebrate, but as importantly, to realize how much still remains to be achieved. It is one of a few LGBTQ+ rulings coming on the heels of:
- Lawrence v. Texas (2003), which struck down laws prohibiting consensual, private homosexual activity between adults
- United States v. Windsor (2012), which struck down Section 3 of the Defense of Marriage Act that denied federal recognition of same-sex marriages
- Obergefell v. Hodges (2015), which noted that the right to marry was guaranteed to same-sex couples through the 14th Amendment’s Due Process Clause and Equal Protection Clause.
As a professor primarily teaching human resources, organizational dynamics, and social equity, I already cover the cases above (in addition to infamous rulings like the 1986 ruling in Bowers v. Hardwick that found that there was no right that was constitutionally protected to engage in homosexual sex and that was overturned by the Lawrence ruling). I am already thinking of ways to update my lesson plans to cover Bostock.
While a positive step forward, I have several lingering questions and comments about this ruling.
- For one, while it is now considered a violation of Title VII to fire someone from a job solely on the basis of sexual orientation and gender identification, the ruling does not preclude the alienation, isolation, jokes, and hostile work cultures that can make jobs difficult for LGBTQ+ persons. As we have seen only too often, major legal changes may take prejudice from being overt to being more covert, more subtle.
- Additionally, we need to remember the importance of intersectionalities. The Bostock ruling, while a significant step forward, comes at a time when black, indigenous, and persons of color (BIPOC), women, and those at the intersections therein continue to face disparities and discrimination, whether in employment, health, housing, in encounters with police, and more. Much work remains, especially to understand how intersectionalities continue to matter in (and often get obscured by) public administration. Discrimination is multi-dimensional, and our approaches to HR and organizational dynamics need to understand these dimensions as well.
Still, if public service agencies are the “brains” of governance systems—in that they literally produce public services by taking in inputs and existing within broad historical, legal, political, and socio-economic environments—then the people working within agencies are the most important aspects of those “brains.” When people feel safe at work, when they believe in an agency’s mission, and when the organizational dynamics promote diversity, inclusion, and equity, agencies perform better. And when they perform better, they fulfill their missions better, which ultimately should be around public administration’s highest goal—Improving people’s lives. The Bostock ruling, for HR purposes, can present new opportunities to invest in people. We will need years to understand the effects of this ruling, but we will need to keep our attention especially on whether prejudice becomes more covert and how the ruling affects those at the intersections.
So, for now, many can celebrate, but hard work to implement this ruling and create safe workplaces is only just beginning.
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Dr. Sean McCandless, Assistant Professor of Public Administration, works as the associate director of UIS’s Doctorate in Public Administration Program. His research specialty concerns accountability for social equity, or how public agencies take steps to improve access, processes, quality, and outcomes of public services. With Dr. Mary Guy, he is co-editor of the book Achieving Social Equity: From Problems to Solutions.