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‘Surreal’ Trip: Fired Child Advocate to LGBT Anti-Bias Beacon

Oct. 3, 2019, 10:01 AM

The road to a potentially landmark U.S. Supreme Court decision is rarely a short or smooth ride, and sometimes is traveled without fanfare. The case of Gerald Bostock, a Georgia man who says he was fired for being gay, is a case in point.

Bostock is asking the court to find that federal law bans workplace discrimination against gays and lesbians, the kind of bias that he says motivated his employer—the government of Clayton County, Ga.—to fire him more than six years ago.

His case is one of three LGBT workplace bias disputes under review at the U.S. Supreme Court and scheduled for Oct. 8 oral arguments, which Bostock plans to attend. Together, the cases have attracted widespread attention, with dozens of friend-of-the-court or “amicus” briefs filed to the high court. In them, religious groups, businesses, labor unions, legal scholars, and states have offered their analyses of why the court should or shouldn’t extend “sex” discrimination protections under Title VII of the 1964 Civil Rights Act to cover sexual orientation and gender identity.

But Bostock’s case wasn’t always so high-profile.

His appeal at the U.S. Court of Appeals for the Eleventh Circuit in Atlanta attracted zero amicus briefs. Meanwhile, the cases of now-deceased, gay skydiving instructor Donald Zarda and Aimee Stephens, a fired transgender funeral home director, drew the attention of the Justice Department, the Equal Employment Opportunity Commission, and well-known worker and religious advocacy organizations like the ACLU and the Alliance Defending Freedom.

“A lot of people didn’t rally” around the Bostock case at the Eleventh Circuit stage, said Greg Nevins, Atlanta-based senior counsel and employment fairness project director for Lambda Legal.

The reason, according to Nevins, is that the Eleventh Circuit had heard and rejected a similar case a year earlier—a lawsuit by Jameka Evans, a former security guard at a Georgia hospital who said she was harassed and forced out of her job because she’s a lesbian.

“It seemed unlikely the Eleventh Circuit was going to turn around on a dime” to rule in Bostock’s favor, said Nevins, who argued the Evans case before the Eleventh Circuit and petitioned unsuccessfully for Supreme Court review.

Now, Bostock is poised to be a key figure in the push for LGBT workplace rights nationwide.

Having his case now land at the Supreme Court is “very surreal to me,” Bostock said. “This is such an important issue. It’s a nationwide issue, and somebody needed to stand up and confront this face on.”

Long-Time County Employee

Since his termination, Bostock says he’s lost contact with friends, suffered through a prolonged prostate cancer recovery, and battled bouts of depression.

“I had to sell my home and move out of that community, so it’s taken a toll,” Bostock said in a Sept. 19 interview.

He had worked for the county for more than 10 years as an advocate for children in foster care, receiving awards and positive performance reviews, according to court records. But after his employer found out he played in a recreational softball league for LGBT adults, his supervisor called for an audit of his department’s finances and then fired him.

Practically speaking, Bostock still is looking for permission to take his discrimination claims to trial. The federal trial and appeals courts in Atlanta agreed the case should be dismissed because federal law doesn’t ban workplace bias based on sexual orientation.

And a win at the Supreme Court won’t necessarily mean Bostock wins the case against his former employer. The government of Clayton County denies that he was fired for discrimination, saying instead in court filings that the decision was based on misconduct related to his handling of government money.

An attorney for the county didn’t respond to a request for comment on this report.

Loss of Income, Health Insurance, ‘Dream Job’

In the summer of 2013, just after he was fired, Bostock wasn’t thinking about shaping federal anti-discrimination law.

He was preoccupied with the struggles of losing his income, his health insurance, and a job that he viewed as his purpose and “dream job”—arranging legal and social support for children in foster care, often because they’d been removed from abusive families.

“When this all happened, I couldn’t even get an interview within the child welfare industry, which was devastating to me, obviously,” he said. “That type of work—advocating for child abuse and neglect victims—that was my passion.”

After he filed a discrimination complaint with the EEOC in September 2013, federal investigators advised him not to contact his former coworkers, some of whom had been friends, he said.

“The few that did reach out from Clayton County to me, they really quickly let me know that they wouldn’t be able to do that anymore because they were in fear of retaliation from the county,” he said. “That was a loss.”

Bostock eventually found work as a mental health counselor at an Atlanta-area hospital, where he’s worked for almost five years now.

“I’m still able to give back and make a difference, but now it’s just with adults instead of working with children,” he said.

‘Luck of the Geographic Draw’

Bostock’s fortunes—and the path of his case now pending before the Supreme Court—might have been different if he had lived or worked in a different place.

Georgia is one of 28 states without a statewide anti-discrimination law covering sexual orientation or gender identity. This discrepancy in state laws, combined with the uncertainty over federal-law protections, leaves an estimated 4.1 million LGBT workers nationwide without protection from workplace discrimination, according to a report from the Williams Institute at the UCLA School of Law. The institute estimates 271,000 of those workers live in Georgia.

“Georgia is pretty unique around the country” as one of only three states with no statewide law barring discrimination for any class—race, gender, religion, etc., said Jeff Graham, executive director of LGBT advocacy group Georgia Equality.

Even living a few miles away inside the city of Atlanta would have provided Bostock some protection. The city has had an anti-bias ordinance covering LGBT workers on the books for 19 years, Graham said.

Within the last year, four other Georgia cities have adopted similar ordinances, including Doraville, where Bostock and his partner now live. Another 60 cities and counties have anti-bias policies covering only local government workers, Graham said. Clayton County isn’t one of them.

Moving away from Georgia was never a consideration for Bostock, he said.

“I now call Atlanta home,” he said. “I’m proud of who I am. I’m proud of the man I’ve become, and I’m proud of the success and hard work that I was able to achieve with Clayton County for those kids.”

But the geographic disparity in bias protections emphasizes why advocates are so eager for a win at the U.S. Supreme Court, said Thomas Mew, one of Bostock’s attorneys from the Atlanta firm Buckley Beal.

“That’s why it’s absolutely necessary that the Supreme Court deliver a uniform interpretation of the law at the federal level, because whether an employee is protected from this type of sexual orientation discrimination should never be dependent on the luck of the geographic draw,” Mew said.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com