Bostock v. Clayton County, Georgia: A Landmark Win for the LGBTQ+ Community or a Mask for Private Religious Discrimination?
September 1, 2020
By Casey R. Johnson and Darren J. Campbell
This is an excerpt from an article originally published in the September 2020 issue of OC Lawyer.
Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020) is a landmark victory for the LGBTQ+ community. The holding seems unambiguous: an “employer who fires an individual for being homosexual or transgender fires that person” in violation of Title VII. When you factor in that Bostock was a 6-3 decision with the majority opinion written by Trump appointee, Justice Neil Gorsuch, the dream of equality in the workplace for the LGBTQ+ community seems in reach.
While Bostock is undoubtedly a step forward for equality, it is not a complete victory for the LGBTQ+ community, specifically, or workplace equality, generally. First, do not expect that justice Gorsuch will become the next Justice David Souter. We should note the possibility that this opinion could have far-reaching effects on Title VII (and perhaps Title IX) with respect to other protected classes, notably race discrimination, and affirmative action programs. Second, in the last two pages of his opinion, Justice Gorsuch identifies the exception that could swallow the rule (at least with respect to private employers), the Religious Freedom Restoration Act of 1993 (RFRA).
This article will discuss the Supreme Court’s decision in Bostock, identify future applications of this decision, and explain how Bostock applies in California.