Section 2: Bostock and its Impact
Title VII Protections: Bostock v. Clayton County, 140 S. Ct. 1731 (2020)
In June of 2020, the U.S. Supreme Court issued a decision prohibiting employers from firing individuals on the basis of their sex. In the disputes before the court, longtime employees were fired shortly after revealing to their employers that they were homosexual or transgender. There were no alleged other explanations for the terminations. Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex and national origin. The Court held that “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.”
Effectively, this decision incorporated sexual orientation and gender identity into the word “sex” under Title VII. It prohibited employers from hiring, firing or taking other adverse employment action against employees because of their sexual orientation or gender identity. Title VII applies specifically to employers with 15 or more employees.
In delivering its opinion, the Court noted that the decision does not extend beyond Title VII and that other federal or state laws prohibiting sex discrimination are unchanged. It made clear that issues of sex-segregated bathrooms, locker rooms and dress codes were not addressed or adjudicated on. However, Justice Alito’s dissent suggests that Title IX challenges to bathroom or locker room policy may be emboldened by the ruling.
The Impact of Bostock
In response to the Supreme Court’s landmark decision in Bostock, many challenges have arisen regarding the effect of the Bostock decision on Title IX claims. National entities have sought to offer guidance on the meaning of Bostock for school districts and on whether such Title IX claims have merit.
National School Boards Association: School districts across the nation are now prohibited from firing homosexual or transgender employees. In such terminations, even if an employee’s sex, under the meaning of Title VII, is a motivating factor in an adverse employment action, the school district may be liable. The National School Boards Association advises school districts to “review their nondiscrimination policies to determine whether they should be updated to address treatment based on sexual orientation or gender identity.” It also advises school districts to educate school board members and employees on the Supreme Court’s ruling.
U.S. Department of Education Office for Civil Rights (OCR):
Title IX Interpretation by Courts: In Adams v. Sch. Bd. of St. Johns Cty and Grimm v. Gloucester Cty. Sch. Bd., two federal court cases discussed below, the Court’s reasoning and language regarding the meaning of “sex” under Title VII in Bostock was used as guidance for interpreting “sex” under Title IX.
National School Board Association guidance