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featuring guest blogger TOM KELLENBERG (ND ‘80)

In a landmark decision on June 15, 2020, the US Supreme Court ruled in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 protects LGBT workers from employment discrimination on the basis of their sexual orientation or gender identity.  Writing for the majority in a 6-3 decision, Justice Neil Gorsuch declared that “[a]n employer who fires an individual merely for being gay or transgender defies the law.”

The Bostock case consolidated several lawsuits involving three different plaintiffs, each recognized in the opinion:

  • Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.
  • Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired. 
  • Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.” 

The Court ruled that such firings are illegal because they violate Title VII of the Civil Rights Act of 1964, which makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”  More specifically, the Court held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” noting that if, for example, an employer fires a male employee for no other reason than he is attracted to men, “the employer discriminates against him for traits or actions it tolerates in his female colleague.” Similarly, if an employer fires a transgender worker who was identified as a male at birth and who now identifies as a female, but retains an otherwise identical employee who was identified as female at birth, “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”

While Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh argued in their dissenting opinions that Congress never intended to prohibit employment discrimination on the basis of sexual orientation or gender identity when Title VII was enacted in 1964, the majority opinion, citing a previous Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., countered that it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 

Sadly, Gerald Bostock is the only plaintiff still alive to celebrate the outcome of this momentous case.  Donald Zarda died in a skydiving accident in 2014 and Aimee Stephens passed away from kidney disease earlier this year. With this victory, significant progress has been made to ensure equal rights for LGBT persons. Now it is time for Congress to pass the Equality Act, which would further prohibit LGBT-related discrimination in housing, credit, education, jury service, public accommodations and federal programs.

Notre Dame alum Tom Kellenberg (PLS, ECON '80) directs Notre Dame's study-in-DC program, where he teaches courses in law, public policy, and human rights. A graduate of Harvard Law School who has worked as a labor and employment attorney, Tom is also the executive director of International Human Rights Advocates, a non-governmental, nonprofit organization that provides legal support, lobbying assistance, and government relations services to individuals and human rights groups in the United States and abroad. He is a longtime supporter and friend of the Higgins Labor Program, where he has contributed two entries to the Labor Song of the Month playlist.



Thanks for this informative post, Tom. One would think that these sorts of transgressions made by employers would in no way be tolerated in our society today but, sadly, they are. This was certainly a monumental outcome and an important win during Pride month. Keep up the good work in D.C.

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