Gerald Bostock Was Fired. He Wants His Supreme Court Case to Help Change LGBTQ Rights in America.
The Daily Beast
September 20, 2019
Gerald Bostock’s is one of the landmark LGBTQ discrimination cases SCOTUS will soon hear. He tells Tim Teeman he wants to “ensure nobody goes to work in fear of losing their job.”
Gerald Bostock relished doing his job. He was proud of helping young people. Until 2013 he worked for Clayton County, Georgia, managing the county’s CASA (Court Appointed Special Advocates) program, which trained and assigned volunteers to represent children who have experienced abuse or neglect in court proceedings.
“Imagine having a job you love, that’s your dream job, and all of sudden losing it,” Bostock, 55, from Doraville, Georgia, told The Daily Beast.
In 2013, Bostock was suddenly fired by Clayton County. Bostock claims it was because he is gay, the firing coming after it was revealed to colleagues that he played for a local gay softball league. He was also subject to homophobic slurs, he claims.
Now Bostock’s case is one of three historic LGBTQ discrimination cases that will be heard at the Supreme Court on Oct. 8. (The Daily Beast reported on the other two cases, involving former funeral director Aimee Stephens and skydiver Donald Zarda, in detail recently.)
In all three cases, SCOTUS will consider—and ultimately adjudicate—whether current sex discrimination laws protect LGBTQ people from workplace discrimination.
“For me it has been extremely emotional,” Bostock told The Daily Beast of the last six years of legal fighting. “I lost my livelihood, and my source of income. I even lost my medical insurance, and at a time I was just recovering from prostate cancer. It’s been a long six-year journey not only to clear my name, but also help make it so no one has to go to work in fear of being fired for who they are, how they identify, and who they love.”
The lawyers in all three SCOTUS cases claim that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin, includes sexual orientation and gender identity, under the “sex” classification.
All three cases represent as momentous a moment for LGBTQ rights and equality at the Supreme Court as the Defense of Marriage Act and marriage equality rulings did in 2013 and 2015, respectively.
Two of the cases focus on gay-related discrimination and will be heard together—Bostock’s and Zarda’s. The case of Stephens, who alleges her employer discriminated against her because she is transgender, will be heard separately.
The cases are being heard against the backdrop of the stymied passage of the Equality Act, which would enshrine anti-LGBTQ discrimination protections in federal law (28 states presently have no protections for LGBTQ employees). The act passed in the House of Representatives but has little chance of getting passed in a Republican-controlled Senate.
Thomas J. Mew, partner at Buckley Beal in Atlanta and one of Bostock’s attorneys, told The Daily Beast: “This is a landmark case because we’re in a situation where right now in too many parts of the country a gay or lesbian individual can marry their partner on Sunday and then be fired for their sexual orientation on Monday.”
Mew said, “What this situation is screaming out for is a uniform federal standard, and application of the law that protects LGBTQ men and women. Whether the individual is protected or not from discrimination should never be contingent on the luck of the geographical draw.”
As summarized by SCOTUSBlog, Bostock claimed that the county falsely accused him of mismanaging public money, when it really fired him for being gay.
In the other cases, lower courts have delivered rulings in favor of Zarda and Stephens. But so far in Bostock’s case, a district court ruled that Title VII did not cover sexual orientation, a ruling upheld by the U.S. Court of Appeals for the 11th Circuit—and so Bostock has brought his case to the Supreme Court.
Brian J. Sutherland, partner at Buckley Beal and another of Bostock’s attorneys, told The Daily Beast that the “plain language of the Civil Rights Act clearly applies to sexual orientation. You can’t consider a person’s sexual orientation without considering his or her sex, and you can’t consider a person’s sex when you’re making an employment decision against them.”
A spokesperson for Clayton County, Georgia, told The Daily Beast they would not discuss the case, adding: “We do not comment on pending litigation.”
Jennifer King, executive director of Georgia CASA, told The Daily Beast that the organization was aware of the Supreme Court case “and its potential to further define protections under Title VII of the Civil Rights Act.”
King revealed that Georgia CASA has not had involvement with any resulting legal proceedings, nor been a party to the case.
“Georgia CASA does not have direct authority in personnel matters at local affiliates; we are not responsible for any hiring or termination decisions,” King wrote in an email to The Daily Beast.
“Our focus continues to be on our mission of supporting and providing volunteer advocacy for children experiencing foster care. As a state network of independent affiliates, Georgia CASA embraces the diversity of its volunteers, staff, and supporters and actively works to engage advocates who are inclusive and representative of the communities and children the CASA program serves.”
The Trump administration—led by Solicitor General Noel J. Francisco and Department of Justice attorneys—has argued that Title VII does not include sexual orientation or gender identity, and therefore it is perfectly legal to fire and discriminate against people on the grounds that they are LGBTQ.
“Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex,” the Justice Department argued, “but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect.”
Bostock said he was not only immensely fulfilled by his work for Clayton County but also that the program was immensely successful and had received many awards for its work. He received favorable performance reviews. “My employer loved me doing my job.”
It was when he joined the Hotlanta Softball League in January 2013 “that my life started to change,” said Bostock.“Negative comments about my sexual orientation started surfacing, disparaging comments about my participation within the league, and the fact I was promoting the CASA program within what was said to be ‘the gay community’ of Atlanta.”
Both the national and Georgia CASA chapters have strict inclusion and anti-discrimination policies, including around sexual orientation, Bostock said. “I did nothing wrong and nothing differently, other than joining a gay softball league,” insisted Bostock.
He and his lawyer declined to say what anti-gay slurs had been said to him. “I need my day in court in order to do that,” said Bostock.
The day he was fired, Bostock went to work and his key-swipe no longer worked. His subsequent termination was abrupt.
“I was completely shocked and devastated. Everything flashed before me in an instant: all my hard work given to the county for 10 years advocating for child abuse and neglect victims, and all my successes and achievements—all of that being taken away from me suddenly because of my sexual orientation. The timeline speaks for itself.
“It was both physically and emotionally draining for me. I was still recovering from prostate cancer. The stress of this alone prolonged my recovery. As I moved through this journey I learned that it was a much bigger issue than just me. Because it is an issue of national importance, I thought someone should make the issue known and bring it to the attention of the courts. I didn’t want this to happen to anyone else. I didn’t want anyone else to experience what I’ve gone through for the last six years.”
Going to the Supreme Court and being part of a landmark case was “exciting but surreal,” said Bostock. “This is no longer about me, it’s about the LGBTQ community that deals with this issue every day throughout our country. Homophobia is not acceptable, and workplace discrimination of any form is just wrong.”
Bostock said he was “living proof” of Clayton County’s homophobia. “But what about the children still in foster care in Clayton County? We had achieved the benchmark of serving 100 percent of children in care, and it is now my understanding the program is no longer supplying a CASA volunteer for every child in the courts. Those children have become re-victimized.
“What about children in care who identify as LGBTQ? What kind of message does this case send to them? They have lost a positive role model. They lost somebody they could look up to. I think Clayton County have sent a very homophobic message to them that their lives don’t matter.
“What about the gay softball league, and the LGBTQ community within Atlanta—all those wonderful people interested in the program and volunteering? It’s also a very homophobic message sent to that community: ‘You’re not welcome to participate in the Clayton County court program.’ There are lots of homophobia-related issues at play here, and a lot of victims as a result of it.”
Attorney Sutherland invoked the 1989 SCOTUS case involving Ann Hopkins, a Price Waterhouse employee who sued her employer after she was denied partnership because her firm objected to how she dressed and did her makeup.
When the Supreme Court ruled in favor of Hopkins, it made clear that gender stereotyping was as actionable as sex discrimination. “This also supports the conclusion that sexual orientation discrimination is a form of sex discrimination that is prohibited by the law,” said Sutherland.
There had also been amendments to the Civil Rights Act, “supporting expansive interpretations of the law,” Sutherland added. “The Civil Rights Act should be interpreted broadly, and the Supreme Court has recognized that it reaches broadly, and it should be interpreted broadly to include sexual orientation discrimination as a prohibited form of sex discrimination.”
The present rightward-tilting makeup of SCOTUS does not concern Sutherland.
“We are confident and expect to be successful. The legal arguments we are making are grounded in the text and history of the law. The right to work is not a political issue. That’s what the Civil Rights Act is about when it comes to discrimination: People need to be judged according to their work performance. This is a straightforward application-of-the-law issue.”
As an employee, Bostock, said Sutherland, was an “incredibly effective employee developing a program that served at-risk children in the Clayton County juvenile system. He won awards. Nothing changed except he joined a gay recreational softball league.”
The case was dismissed without a chance to go trial and so, said Sutherland, “a large part of this is to give Gerald his day in court to show evidence to support his claim—that he was fired because of his sexual orientation.”
Bostock’s career in child welfare services ended after he was fired in 2013. He couldn’t get an interview in that field, he said. He has since become a mental health counselor working at Georgia Regional Hospital.
“I’m still making a difference, but with adults, not children. I’ve always been a person who wanted to give back and make a positive difference in the community around me, but my passion was working with children, and that was the job I was good at. The program I ran had great success, and had national and statewide accolades—and having that passion taken away from you for doing nothing wrong is just hurtful.
“Working with children absolutely is and always has been my passion since graduating from college and starting my career.”
Bostock’s lack of success in the lower courts has been “difficult and hurtful,” but motivating to “keep pushing forward with my legal team. Without the support of my partner as well as my family and circle of friends, I don’t know if I would have had the strength and ability to do what I’ve done. They’ve been by my side the entire time and I love them dearly. They have been a great support and source of strength for me.” (Bostock said he was now cancer-free, and no longer plays softball.)
This reporter asked Sutherland and Mew if LGBTQ rights and equality would be placed on a surer footing if a piece of law—like the Equality Act, if it ever passes—mentioned sexual orientation and gender identity as specifically prohibited grounds of discrimination.
Sutherland reiterated that it wasn’t necessary: The current law prohibited sexual orientation discrimination as a form of sex discrimination.
Bostock himself told The Daily Beast: “I will continue in my fight for equality and equal rights for all. Any American who wants to work and is able to work should have that right without fear of losing their job because of who they are, how they identify, and who they love.
“I am proud of who I am, and the man I have become—and I am very proud of the hard work and success I had in Clayton County. Nobody is going to take that away from me. I hope and pray that others have that same self-confidence, and follow this path with me, so we can ensure that nobody goes to work in fear of losing their job.”