The Supreme Court’s opinion released earlier this week in Bostock v. Clayton County, Georgia represents an outstanding milestone in the LGBTQ civil rights movement, and numerous posts and articles rightly celebrate this, including this one by my colleague Alok Nadig.
The opinion also reminds us of several concepts that can benefit all victims of unlawful workplace discrimination, including discrimination on the basis of race, color, religion, sex, national origin, and explicitly as of today sexual orientation and gender identity.
1. An employer can be liable for discriminating against an individual even if it has favorable policies. As the Court points out, an employer that discriminates against one woman (for example, by refusing to hire a woman with young children) cannot defend its actions by noting that, on the whole, it favors women. As an employment discrimination attorney, I frequently hear companies try to defend discrimination cases by pointing to their “award-winning diversity initiatives” or the “large number of Black employees they have in senior management.” The decision earlier this week reminds us that discrimination can take many forms, and an employer can be liable for discrimination against one employee even if it does not discriminate against everyone else in the group.
2. Relatedly, the Court reminds us that is “immaterial that members of the same sex as the victim committed the alleged discrimination.” Women can discriminate against women, for example, and Black managers can discriminate against Black employees. While this has long been true, too often I hear companies forget this and attempt to defend discrimination cases by asserting that the discriminator was in the same group as the victim. This opinion is a helpful reminder that companies cannot escape liability in this manner.
3. Benign intent does not matter if the effect is discrimination. The Court noted “[I]t’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Again, this is not a new concept in anti-discrimination law; when she was a litigator Justice Ruth Bader Ginsburg successfully challenged many paternalistic laws designed to “protect” women. A boss who fails to assign a challenging project to a new mother may think he is protecting her and her time, but if the effect is to deny the employee a career-enhancing project she wanted, the boss may be on the hook for discrimination.
4. If the employer would not have made the challenged decision “but for” the employee’s sexual orientation (or gender identity, sex, race, or other protected characteristics), the employer is liable even if another factor played “a more important role in the decision.” The Court reminds us that Congress could have made it harder for employees to challenge discrimination, but instead wanted broader protections against discrimination.
Not only did this opinion make explicit that federal law prohibits discrimination on the basis of sexual orientation and gender identity, but it also gave us several reminders that the scales of justice are not “tilt[ed] . . . in favor of the strong or popular” and that “all persons are entitled to the benefit of the law’s terms.”