LGBT Employment Rights in an Evolving Legal Landscape: the Impact of the Supreme Court’s Decision in Bostock v. Clayton County, Georgia

Abstract

The Supreme Court heard arguments during its 2019–2020 term in three cases concerning the employment rights of lesbian, gay, bisexual, and transgender (LGBT) employees: Zarda v. Altitude Express (2018), Bostock v. Clayton County (2018b), and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (2018). In these cases the lower courts considered whether or not Title VII includes protections based on sexual orientation or gender identity. The cases reached the Supreme Court after a split in the circuit court decisions and under a backdrop of differing, and at times conflicting, state and local laws as well as divergent positions taken by federal agencies. In a 6–3 decision, the Court ultimately held that Title VII covers both sexual orientation and gender identity. This paper submits that the legal questions before the Court rested upon the evolution in the legal interpretation of Title VII as well as the changing social standards as applied to LGBT employees in large part due to the Supreme Court decision in Obergefell v. Hodges (2015). While the current environment of LGBT rights represents a time of great transition, the Supreme Court’s decision provides clarity to legal and human resource professionals regarding how they should treat LGBT employees and applicants.