Sweeping nature of decision will make it harder for agencies to deny discrimination against gay and transgender employees.
The U.S. Supreme Court on Monday issued a historic ruling ensuring civil rights law protects gay and transgender individuals, a decision that will strengthen protections federal employees have held for decades through executive orders.
The 1964 Civil Rights Act that prohibits discrimination on the basis of sex, as well as race, color, national origin, religion and age, includes inequity based on sexual orientation and gender identity, the court ruled in a 6-3 decision on Bostock v. Clayton County. While a series of executive orders have barred discrimination against lesbian, gay, bisexual, transgender and queer federal employees since the late 1990s, legal experts say Monday’s landmark ruling will make it easier for such workers to prove their agencies have discriminated against them due to their sexual orientation or gender identity.
The federal government created “prohibited personnel practices” in 1978, and began interpreting the ban against discrimination to include sexual orientation in 1980. President Bill Clinton in 1998 issued an executive order that more clearly prohibited prejudice in the federal workplace on the basis of sexual orientation, but he stated he did not have the authority to grant certain legal protections, such as the right to take complaints to the Equal Employment Opportunity Commission.
President Obama in 2014 signed an executive order extending the discrimination protections entitled to federal employees to transgender workers. He signed another order that prevented federal contractors from discriminating against their LGBT employees. A 2013 EEOC ruling determined the 1964 Civil Rights Act gender protection provisions extended to gender identity.
Still, federal employees have sometimes stood on shaky legal ground and have remained subject to the whims of each new administration. The 2002 Notification and Federal Employees Antidiscrimination and Retaliation Act, or No-FEAR Act, for example, requires agencies to inform workers of their rights to combat discrimination in all areas except sexual orientation. The Trump administration has walked back some protections for transgender feds, removing from its personnel website guidance for all federal agencies to follow regarding transgender employees and implementing new policies for transitioning workers. Among the rights afforded in the deleted guidance were requirements that agencies change official documentation and email addresses to accommodate employee name changes even without legal documentation, managers use the names and pronouns employees requested and agencies provide access to restrooms and other facilities consistent with employees' gender identity.
Federal agencies commonly use their own perception to have not discriminated on the basis of sex to argue they have not done so, an argument federal employment law experts now say will be difficult if not impossible due to the Bostock ruling. Discrimination cases in the federal sector make their way through internal EEO complaints and employees around government can encounter a disparate patchwork of protections for LGBTQ employees from one agency to another.
“What you had were words on a paper that may or may not have protected the LGBT-plus community,” Dan Meyer, managing partner at Tully Rinckey and a former senior executive in the intelligence community, said of existing protections in the federal workforce.
Meyer predicted that with LGBTQ federal employees holding a firmer right to sue or bring cases before the EEOC, agencies will act more carefully to prevent discrimination.
“There will be more sunshine on the process and more sunshine leads management to behave itself,” Meyer said.
Prior to 1975, the federal government actively examined sexual orientation as part of its hiring practices and it considered homosexuality against the priority of employing individuals with “good moral character.” In the 1950s and 1960s, the public maintained a campaign against employing gays and lesbians in the federal service. Thousands of federal workers lost their jobs during this period due to their sexual orientation.
Members of Congress tied the removal of gay employees from the civil service to their campaigns against Communists, and one committee suggested, “homosexuals and other sex perverts were not proper persons to be employed in government for two reasons—first, they are generally unsuitable, and second, they constitute security risks.”
Despite advances since that era, a 2014 study by the Merit Systems Protection Board found LGBTQ federal employees will not be fully safeguarded under federal statute until Congress passes legislation guaranteeing their equal protection. Richard Renner, a partner at Kalijarvi, Chuzi, Newman and Fitch, said the Bostock decision could serve a similar purpose.
“It’s going to knock down a number of common defenses used by federal agencies in the federal sector,” Renner said. “Today’s decision will make it a lot harder for federal agencies, for judges, to dismiss cases.”
The sweeping nature of the language in the decision, Renner said, will make it so every federal employee bringing an EEO discrimination claim will have a stronger case.
“It’s a far-reaching decision with all kinds of impacts,” he said.