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Bostock v. Clayton County and the Further Protection it Provides New Jersey Employees

On June 15, 2020, the Supreme Court of the United States held that in Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 2017 L. Ed. 2d (2020), an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The majority opinion was authored by Justice Neil Gorsuch, a dissenting opinion was authored by Justice Samuel Alito, which Justice Clarence Thomas joined, and a separate dissenting opinion was authored by Justice Brett Kavanaugh.

Gerald Bostock, a gay man, began working for Clayton County, Georgia as a child welfare services coordinator in 2003. Fast forward a decade to 2013, Bostock began participating in a gay recreational softball league. Bostock received criticism for his participation in this league, including hateful remarks about Bostock’s sexual orientation during a meeting where Bostock’s supervisor was present. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed and shortly thereafter Bostock was terminated for “conduct unbecoming of its employees.” In addition to Bostock, two other cases were at play. One in which a man was fired for mentioning he was gay and the other where a transgender woman now wished to live and work as a woman. They were both consolidated under this decision and after years of battling through our court system, Gerald Bostock reached the Supreme Court in what would result in one of the most impactful decisions thus far in our country’s history.

Without having to delve into various dictionaries or biology text books from the past centuries defining the term “sex”, the opinion boiled down to this:

“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

In other words, since females would not be fired for being attracted to men, then why could men be fired for being attracted to men? In the same vein, if somebody was born a male and then transitioned at some point to being female or vice versa, neither alone would be discriminated against for simply being male or female, rather they are discriminated against for the transition. What both of these hypotheticals have in common, and how the majority sees it, is that they hinge on simply being male or female. The Court held that gender plays the main role in each scenario no matter whether you’re gay, born male then transitioned, born female then transitioned, especially as sex is protected under the Civil Rights Act of 1964. This decision has an obvious impact on the various states who yet have protections for gay/transgender employees. However, how does this decision impact those states that already had these protections, including our beloved state of New Jersey?

In 1991, New Jersey amended the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1, to bar employers from discriminating against their employees for being gay or lesbian. Years later in 2006, New Jersey once more amended LAD to bar employers from discriminating against their employees for their gender expression.

On the surface it seems that Bostock has no impact on the employees of New Jersey, but in reality many New Jersey employees still remained unprotected from sexual orientation and gender expression discrimination even after the amendments made to LAD. Those who remained unprotected were mainly workers employed in New Jersey by multistate companies. Some of these companies would have their employees sign agreements binding them to the laws of the state where their company is headquartered, or where the “never center” is located as held in Hertz Corp. v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 175 L. Ed. 2d 1029 (2010). These binding agreements can still exist and apply to other areas of law, but now gay and transgender employees have this extra Federal protection of Bostock. Additionally, Bostock now protects federal contractors, who operate in New Jersey and were not covered by LAD.

It is difficult to say how this holding will impact other areas of the law where discrimination based on sex and sexual orientation is prohibited, such as in education, health care, housing, etc., but for now, all employees of our home state of New Jersey may continue to work without fear of being terminated because of who they love or how they identify.

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