Gays’ Job Rights at Stake in Upcoming Supreme Court Cases

September 18, 2019

Gerald Bostock says he’s convinced his participation in a gay softball league was why he was fired from his job running the child-advocate program at the juvenile court in Clayton County, Georgia.

The Atlanta-area county’s decision sent “a homophobic message that we do not approve of your sexual orientation,” Bostock said.

But Bostock might never get to test his allegations in court. The U.S. Supreme Court is set to use his case to consider whether federal law gives gay people any protection against employment discrimination. The court will hear arguments on Oct. 8, the second day of its new nine-month term.

The case will tackle a central irony in the fight over gay rights. Even though the Supreme Court legalized same-sex marriage nationwide in 2015, gay people can still be fired from their jobs in much of the country. Lower courts are split on whether federal law permits anti-gay discrimination, and fewer than half of the states bar it through their own civil rights statutes.

“Most people in this country already think that federal law protects gay and lesbian employees from being fired because of their sexual orientation,” said Sasha Samberg-Champion, a Washington lawyer who filed a brief backing Bostock for a group of employment-discrimination scholars. For the Supreme Court to say otherwise “would be very surprising and upsetting to many people,” he said.

The court will hear Bostock’s appeal on the same day it considers a similar case involving a now-deceased gay skydiving instructor in New York, as well as a separate fight over a transgender woman fired from her job at a Michigan funeral-home chain.

Defining ‘Sex’

Together, the cases will define the reach of the main federal job-bias law, known as Title VII. That measure outlaws discrimination because of sex, as well as race, religion and a handful of other factors. It doesn’t explicitly mention sexual orientation or gender identity.

President Donald Trump’s administration is among those arguing that Title VII, by its terms, doesn’t cover sexual orientation or gender identity.

“The ordinary meaning of ‘sex’ is biologically male or female,” Solicitor General Noel Francisco argued. “It does not include sexual orientation.”

The administration and its allies say Congress had no intention of covering sexual orientation or gender identity when it enacted Title VII as part of the 1964 Civil Rights Act. They say lawmakers have repeatedly tried — and failed — to broaden the law’s coverage.

“If ‘because of sex’ included ‘sexual orientation,’ why have there been efforts over the past several decades to amend the statute to include ‘sexual orientation’?” said John Eastman, a professor at Chapman University School of Law. He filed a brief backing the county on behalf of the National Organization for Marriage and the Center for Constitutional Jurisprudence.

Bostock and his supporters contend that sexual-orientation bias is a form of sex discrimination because it necessarily depends on the gender of the person being targeted. They say the Supreme Court has always interpreted the law broadly, as when it barred employers from sex stereotyping in a 1991 ruling.

“What the court has said in the past is that discrimination ‘because of sex’ is a very broad concept that applies even to situations that the Congress that enacted Title VII probably never imagined,” Samberg-Champion said.

Business Support

Bostock has the support of more than 200 businesses, including Amazon.com Inc., Apple Inc., Goldman Sachs Group Inc. and General Motors Co. They say a ruling in Bostock’s favor would help companies recruit talent and generate innovative ideas.

Bostock was 49 when he was fired in 2013 from his job running Clayton County’s Court Appointed Special Advocates program, which recruits and trains volunteers to serve as the voice for children who have been victims of abuse or neglect.

His dismissal occurred after a county audit of the funds he managed. The juvenile court’s chief judge, Steven Teske, was quoted at the time by a local television station as saying Bostock improperly used the money at bars and restaurants in midtown Atlanta, about 20 miles north of the Clayton County courthouse in Jonesboro.

“I don’t see how you can justify going to Atlanta to recruit volunteers for Clayton County,” Teske told WSB-TV.

Teske didn’t respond to a request for an interview, and the county’s attorney, Jack Hancock, declined to discuss the specifics of the lawsuit.

“It is our position that Mr. Bostock’s sexual orientation had nothing to do with his termination,” Hancock said in an e-mail. “Nor does the juvenile court or the county discriminate against employees based upon their sexual orientation.”

But Bostock said in an interview at his house that he was engaging in the same type of recruiting he had been doing for years. He said his spending wasn’t questioned until he got involved with the Hotlanta Softball League and started recruiting volunteers from the people he got to know.

“I wanted to open that door,” said Bostock, who now lives on the other side of Atlanta in a house festooned with University of Georgia paraphernalia. “There are a lot of resources within the gay community that had really kind of been untapped.”

He said he had been open about his sexual orientation at work even before he joined the league.

‘A Job You Love’

Bostock said his active recruiting had helped make the county the first in the Atlanta area to have a volunteer for every child who needed one. He said he was passionate about making a difference for needy children and was devastated by his firing.

“You have a job you love, you’re good at it, and then all of a sudden you find yourself fired,” he said. He now works as a mental health counselor at a local hospital.

Bostock, now 55, said he hadn’t intended to become a civil rights activist.

“I didn’t ask for any of this,” he said. “But this is an issue of national importance. And through my experience, I’ve learned that somebody needs to stand up for this cause and now that person’s me.”

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