Specific Claims· 12 min read

LGBTQ+ Discrimination: What You Need to Prove

Before 2020, whether Title VII protected workers from discrimination based on sexual orientation or gender identity depended on which circuit court's jurisdiction you were in. The Supreme Court's decision in Bostock v. Clayton County resolved the split. Title VII's prohibition on sex discrimination includes discrimination because of sexual orientation and gender identity. The legal framework is now clear; the evidentiary challenges remain.

Bostock and What It Established

In Bostock v. Clayton County (2020), the Supreme Court held — in a 6-3 decision — that an employer who fires an employee for being gay or transgender violates Title VII's prohibition on discrimination "because of sex." Justice Gorsuch's majority opinion reasoned that it is impossible to discriminate against a person for being gay or transgender without taking sex into account: an employer who fires a man for being attracted to men would not fire a woman for the same attraction, meaning sex is necessarily a factor in the decision. Bostock covers all LGBTQ+ workers in all states — federal protection no longer depends on state law for these claims.

What You Need to Prove

An LGBTQ+ discrimination claim proceeds like any Title VII sex discrimination claim under McDonnell Douglas. The plaintiff establishes a prima facie case — member of a protected class (sex, including sexual orientation or gender identity), qualified, adverse action, inference of discrimination. The employer offers a legitimate reason. The plaintiff shows pretext. For transgender plaintiffs, evidence often involves: adverse actions that coincided with or followed transition or disclosure; inconsistent application of dress code or appearance standards; misuse of name or pronouns as part of a broader pattern of discriminatory conduct; and exclusion from opportunities, facilities, or programs. For gay and lesbian plaintiffs, the analysis focuses on: temporal proximity between disclosure of sexual orientation and adverse action; comparators who were treated differently; and statements from decision-makers reflecting animus or stereotyping.

The Sex Stereotyping Connection

Pre-Bostock, LGBTQ+ workers often relied on the sex stereotyping doctrine of Price Waterhouse — arguing that they were penalized for failing to conform to gender norms. That doctrine remains viable and can supplement a Bostock claim. An employee who is penalized for being too masculine (if female) or too feminine (if male) — separate from sexual orientation or gender identity — has a sex stereotyping claim that doesn't require Bostock.

State Law and Local Ordinances

Many states had LGBTQ+ employment protections before Bostock and continue to provide them. Some are broader than federal law — covering smaller employers, providing longer statutes of limitations, or offering stronger remedies. Workers in states with their own protections should evaluate both federal and state claims.

Key takeaways

Bostock and What It Established
What You Need to Prove
The Sex Stereotyping Connection
State Law and Local Ordinances

Citations

Bostock v. Clayton County, 590 U.S. 644 (2020) — Cited authority
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) — Cited authority
Title VII, 42 U.S.C. § 2000e-2 — Cited authority

Next deep dive

Pay Discrimination: What You Need to Prove