EMPLOYMENT DISCRIMINATION AGAINST LGBTQIA1
PERSONS
EDITED BY ALEXIS POLLITTO, MELL CHHOY, JULIA STURGES, AND LINDSAY SERGI
I. INTRODUCTION.......................................... 519
II. ESTABLISHING EMPLOYMENT DISCRIMINATION TOWARD
SEXUAL MINORITIES & BOSTOCK ............................. 520
A. PRE-BOSTOCK TITLE VII CLAIMS BASED ON SEXUAL ORIENTATION
AND GENDER IDENTITY................................ 520
B. THE BOSTOCK DECISION ............................... 523
III. POST-BOSTOCK DEVELOPMENTS .............................. 525
A. STATE ANTI-DISCRIMINATION STATUTES.................... 525
B. LIMITATIONS AND CHALLENGES TO THE EEOC GUIDANCE . . . . . . . 526
C. CURRENT STATUS OF MILITARY EMPLOYMENT FOR TRANSGENDER
PEOPLE........................................... 527
D. STATE LAWS ON EMPLOYMENT DISCRIMINATION AGAINST
TRANSGENDER PEOPLE ................................ 529
IV. EMPLOYMENT DISCRIMINATION IN HIRING AND TERMINATION . . . . . . . . . 531
A. DISPARATE LEVELS OF PROTECTION BASED ON EMPLOYMENT
SECTOR .......................................... 531
B. BRINGING CLAIMS OF HIRING AND TERMINATION DISCRIMINATION. . 533
1. Failure to Hire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534
2. Wrongful Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535
3. Intentional Infliction of Emotional Distress . . . . . . . . . . . . . 536
V. EMPLOYMENT BENEFITS FOR LGBTQIAþPERSONS ............... 537
A. THE CURRENT STATE OF EMPLOYMENT BENEFITS FOR FAMILIES HEADED
BY SAME-SEX COUPLES ................................ 538
B. MEDICAL SERVICES FOR GENDER AFFIRMATION TREATMENTS . . . . . 539
C. PAID FAMILY AND SICK LEAVE .......................... 540
VI. CONCLUSION ........................................... 542
I. INTRODUCTION
This Article addresses the current state of legal protections for individuals facing
employment discrimination due to their sexual orientation or gender identity. Part II
provides an overview of federal laws concerning sexual orientation and gender dis-
crimination, including the 2020 U.S. Supreme Court ruling in Bostock v. Clayton
itations, and the state of pre-Bostock precedent. Part IV examines employment
discrimination faced by LGBTQIAþpersons in hiring and termination. Part V
519
provides a survey of contemporary employment benefits for LGBTQIAþpersons
and medical services for those seeking gender affirming treatments.
II. ESTABLISHING EMPLOYMENT DISCRIMINATION TOWARD
SEXUAL MINORITIES & BOSTOCK
Title VII of the Civil Rights Act of 1964 established that “it shall be unlawful
employment practice for an employer to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such indi-
vidual’s race, color, religion, sex, or national origin.”
1
Under Price Waterhouse v.
Hopkins, the statute was interpreted to mean that an impermissible consideration of
sex cannot be a motivating factor in an employment practice.
2
To assert a valid sex
discrimination claim under Title VII, the plaintiff must establish a prima facie
case showing that discrimination on the basis of gender could be inferred from
the defendant’s conduct.
3
Once that has been established, the burden shifts to
the employer to articulate a legitimate nondiscriminatory reason for its action.
4
If the employer then meets that burden, the plaintiff must provide evidence that
the employer’s conduct was “more likely than not” based wholly or partially on
discrimination.
5
In 2020, the Supreme Court extended these protections to trans-
gender employees, holding that “[a]n employer who fires an individual merely
thereby creating a uniform system of federal interpretation.
6
Section A of this Part discusses Title VII claims based on sexual orientation
and how it provides a stronger avenue for redress against employers discriminat-
ing against LGBTQIAþpersons.
A. PRE-BOSTOCK TITLE VII CLAIMS BASED ON SEXUAL ORIENTATION
AND GENDER IDENTITY
Prior to Bostock, LGBTQIAþplaintiffs succeeded under Title VII by building
on the sex stereotyping theories of discrimination
7
articulated by the Supreme
Court in Price Waterhouse v. Hopkins.
8
In Price Waterhouse, the Supreme Court
significantly expanded the traditional definition of “sex” by incorporating dis-
crimination based on noncompliance with gender stereotypes into Title VII’s
prohibition on sex discrimination.
9
The plaintiff, Ann Hopkins, was rejected for
1. See 42 U.S.C. § 2000e-2(2)(1) (2023).
2. See Price Waterhouse v. Hopkins, 490 U.S. 228, 239–40 (1989).
4. Id.
5. See also Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)).
7. See discussion infra Part II.B.
8. See Price Waterhouse, 490 U.S. at 251 (1989); see also Schroer v. Billington, 577 F. Supp. 2d 293,
9. See Price Waterhouse, 490 U.S. at 251.
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