Bostock v. Clayton County, Georgia and Sex Stereotyping: The Road Not Taken
Professor Matthew Green
Alan Miles Ruben and Judge Betty Willis Ruben Professor of Law
In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020) the U.S. Supreme Court held that an employer that fires individuals “simply for being” gay or transgender violates Title VII’s proscriptions against discrimination because of sex. The holding was decades in the making. Beginning in the early 1970s, courts began to consider whether Title VII reached claims alleging sexual orientation and gender identity discrimination. Early courts and the Equal Employment Opportunity Commission, the agency that administers Title VII, determined that such claims were beyond the reach of the statute. That position slowly began to change over the ensuing decades, which commentators have attributed, among other things, to evolving interpretations of what Title VII means by forbidding employers “to discriminate against any individual . . . because of such individual's . . . sex” (42 U.S.C. § 2000e-2(a)(1)). In that regard, in 1989, the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that employers violate Title VII when they engage in prescriptive stereotyping by insisting or requiring that their employees match gender norms associated with their sex. Every federal circuit court that has addressed the issue has agreed that an individual may rely on gender-stereotyping evidence to show that discrimination occurred “because of . . . sex.” E.E.O.C. v. Boh Bros. Construction Co., L.L.C., 731 F.3d 444, 454 (5th Cir. 2013) (en banc).
However, ignoring the ways in which sexual orientation and gender identity discrimination is grounded in sex stereotypes, numerous judges pre-Bostock opined that discrimination on the basis of sexual orientation or transgender status was distinct from discrimination on the basis of sex stereotypes. Bostock rejects the distinction. Although the Bostock majority did not rest its holding squarely on sex stereotyping, it nevertheless sanctions that evidentiary route to show discrimination was because of sex. The presentation examines judicial treatment of sex stereotyping claims pre-Bostock, particularly as it pertains to LGBTQ+ individuals. It further explains why, post-Bostock, preventing employers from relying on sex stereotypes to make employment decisions remains a viable and vital tool to challenge workplace discrimination on the basis of sex.
Matthew W. Green Jr. is the Alan Miles Ruben and Judge Betty Willis Ruben Associate Professor of Law. He teaches first-year contracts and in the area of employment law with an emphasis on disability and LGBTQ+ discrimination. Professor Green also developed and teaches a seminar focusing on sexual orientation and gender identity workplace discrimination. His published work has appeared in the University of Kansas Law Review, the Berkeley Journal of Employment and Labor Law, the Journal of Gender Race and Justice, and the Hofstra Labor and Employment Law Journal. Professor Green also authored a chapter for e-Langdell Press on the topic of sexual orientation and gender identity employment discrimination, and he has testified before the Ohio House of Representatives in support of the Ohio Fairness Act, which would amend and modernize the Ohio Civil Rights Act to protect against discrimination based on sexual orientation and gender identity or expression.
Prior to joining the faculty at Cleveland-Marshall, Professor Green practiced general civil litigation in Baltimore, Maryland. He received his LL.M. from Columbia University School of Law where he was a Harlan Fiske Stone Scholar; his J.D. from the University of Baltimore School of Law, magna cum laude; and his B.A. from the University of Maryland at College Park. After law school, Professor Green clerked on the U.S. District Court for the District of Maryland for the Hon. Deborah K. Chasanow and on the U.S. Court of Appeals for the Sixth Circuit for the Hon. Eric L. Clay.
CLE credit: 1.0 credit hours pending
Category: CLE Programs, General, Public Lectures