Sexual Orientation and Gender Identity Discrimination Under the Fair Housing Act After Bostock v. Clayton County
28 Pages Posted: 6 Aug 2020 Last revised: 8 Jan 2021
Date Written: August 6, 2020
The Supreme Court recently ruled in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 protects gay, lesbian and transgender employees from discrimination. The majority held that the statute’s prohibition against discrimination in employment “because of . . . sex” necessarily applies to discrimination based on sexual orientation and gender identity. This Article argues that the federal Fair Housing Act (FHA), which has identical language prohibiting housing discrimination “because of . . . sex,” should also now be interpreted to prohibit discrimination based on sexual orientation and gender identity. This is an obvious next step given the similar language, structure, and purpose of both statutes, and the courts’ long tendency to use Title VII cases to guide their interpretation of the FHA. This would also be a welcome development for housing equity, considering the significant discrimination that LGBTQ individuals experience in housing and the dearth of legal protections in place for them.
This Article examines the development of Title VII law with respect to claims by LGBTQ individuals, and the parallel evolution of FHA case law. In particular, it examines how the reasoning behind Title VII cases applies to the FHA. While it is not always true that Title VII analysis developed in the workplace context can translate seamlessly to the housing context, in this case, it does. There is one area which presents a potential hurdle: the problem of mixed motives and causation. The two statutes differ in their treatment of discrimination claims where the defendant was motivated by both permissible and prohibited purposes. If Bostock’s reasoning relies on mixed motives theory, this difference might create difficulty for courts who wish to apply its conclusions to the FHA. This is not the case, however. Although much of the Bostock opinion is taken up with examining the causal role that sex plays in sexual orientation and gender identity discrimination, the Court’s analysis does not implicate mixed motives. Rather, Bostock holds that sex discrimination is inextricably linked to discrimination based on sexual orientation and gender identity. Thus, the mixed motive issue never arises, and the differences between the two statutes on this point are irrelevant.
Keywords: Bostock, housing, Title VII, LGBTQ, discrimination, orientation, motive, discriminate, Fair Housing, gender, sexual
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