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State Attorney General Joins Lawsuit To Preserve SC’s Right To Discriminate

On August 30, 2021, South Carolina Attorney General Alan Wilson joined his state to a lawsuit filed against President Joe Biden and his administration, arguing that the federal government does not have the right to extend federal discrimination protections to members of the LGBTQ+ communities. The original suit was filed by Tennessee’s AG, arguing that the U.S. Department of Education (DOE) and the Equal Employment Opportunity Commission (EEOC) overstepped their authority in interpreting Supreme Court case law. If successful, all this suit would do is to make it even more difficult for LGBTQ+ people to find and retain jobs and educational positions.

Navigating a Post-Bostock World

Sexual orientation and gender identity have not been protected characteristics under any federal anti-discrimination law. The Supreme Court finally ruled that they should be protected in Bostock v. Clayton County (2020), as discriminating on the basis of sexual orientation or gender identity cannot be divorced from the concept of sex or gender, which is a protected characteristic under Title VII of the Civil Rights Act of 1964.

In June 2021, the Department of Education issued guidance clearly inspired by Bostock, stating that any instance of discrimination on the basis of sexual orientation or gender identity in schools would be treated as a violation of Title IX, which protects against sex discrimination in schools. The lawsuit filed by the Tennessee Attorney General seeks declaratory relief (meaning, it seeks specific answers to questions of law) regarding whether the DOE can enforce protections on that basis, and whether the EEOC can restrict private employers’ practices with regard to their LGBTQ+ employees.

You Have Options

LGBTQ+ workers in South Carolina are in a difficult position, not least of all because South Carolina is (as of this post) one of 29 states that do not protect LGBTQ+ people under their workplace antidiscrimination laws. (Nor, for that matter, does the state have a hate crime law or include same-sex couples in its domestic violence laws.) However, Bostock is a federal decision, which applies to every state in the U.S., so if you are a member of the LGBTQ+ community and are being discriminated against at work, you may be able to file a claim with the EEOC.

While any agency “guidance” from the DOE or EEOC does not have the force of law, Bostock does, meaning that at least in the workplace, discriminatory practices like requiring a dress code based on “biological sex” or refusing to use a transgender person’s correct pronouns (behavior this lawsuit seeks to preserve) will receive scrutiny. Bostock speaks only of termination as negative employment action, but given that the casewas decided on the basis of alleged sex discrimination, you may still have a case under Title VII because that law explicitly states that it is unlawful to discriminate against someone on the basis of sex. Consulting an experienced attorney is a must.

Contact a South Carolina Employment Discrimination Attorney

While the ultimate outcome of the Attorneys General’s lawsuit remains to be seen, the fact remains that LGBTQ+ workers are just as entitled to employment protections as any other employee. If you believe you are being discriminated against at work, contacting a South Carolina employment discrimination lawyer from the firm of Hitchcock & Potts may help to answer your questions about the process. Attorney A. Christopher Potts has experience in these types of cases, and will work hard for your interests. Contact our offices today to schedule a consultation.

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