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Author: Courtney Vice
Date: May 2022
From: Fordham Urban Law Journal(Vol. 49, Issue 4)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 18,250 words
Lexile Measure: 2100L

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"You never completely have your rights, one person, until you all have your rights." - Marsha P. Johnson (1) Introduction 916 I. History 919 A. Employment-at-Will 919 B. The Development of the Mixed-Motive Burden of Proof 920 i. Price Waterhouse v. Hopkins 990 ii. The 1991 Civil Rights Act 923 iii. Desert Palace, Inc. v. Costa 974 C. Bostock's Effect on Title VII 925 D. The Current State of Mixed-Motive Antidiscrimination Law 929 II. The Gaps in the Current Mixed-Motive Standard 932 A. Implicit Bias and Modern-Day Discrimination 932 B. Implicit Bias's Impact on Employment Discrimination Cases 936 C. Relevance to the LGBTQ* Community 939 III. Previously Proposed Solutions 946 A. Mandatory Arbitration Clauses 946 B. In-House & Educational Solutions 948 IV. How to Apply Title VII to the Modern Era 950 A. Including Implicit Bias in the 2000e-2(m) Standard 950 B. Removing McDonnell Douglas from Mixed-Motive Summary Judgments 953 C. Legislative History Supports Including Implicit Bias and Excluding McDonnell Douglas in Mixed-Motive Cases 955 D. Including Implicit Bias Analysis in Mixed-Motive Cases Will Not Overburden Employers' Decision-Making Abilities 957 Conclusion 958


Since the 1969 Stonewall Riots, June has been revered as a month of revolution for LGBTQ* (2) rights. (3) In 2000, President Bill Clinton officially declared June as Gay and Lesbian Pride Month, and, in 2011, President Barack Obama expanded the observance of pride to include transgender and bisexual identities. (4) June's spark struck again when the Supreme Court upheld same-sex couples' right to marriage in their 2015 Obergefell v. Hodges decision. (5) June was recently an important time for the LGBTQ* community in 2020. On June 15 of that year, the Supreme Court decided Bostock v. Clayton County, (6) which asked whether Title VII of the Civil Rights Act of 1964 (Title VII) (7) prohibited employment discrimination based on one's sexual orientation and/or gender identity. (8) In a 6-3 opinion, the Court said yes. (9)

Upon hearing the Bostock decision, the LGBTQ* community audibly sighed in relief. Decades of fighting to express their sexual orientation and gender identity in the workplace without fear had finally culminated in Bostock. (10) Duke Law Professor Trina Jones succinctly described the decision's impact: "The decision increases the possibility that the more than 8 million members of the LGBT[Q*] community will be treated with the dignity and respect that people deserve in every aspect of life, and especially when they are simply trying to earn a living." (11) Nevertheless, a question lingered in the silence that followed: was this really the end of employment discrimination for the LGBTQ* community?

Title VII forbids employers from discriminating against employees "on the basis of race, color, religion, sex, or national origin." (12) Despite Title VII's prohibition on discrimination based on "sex," until Bostock, courts had not yet consistently expanded "sex" to include LBGTQ* status as a protected class. In fact, until Bostock, even the Court's most expansive readings of "sex" never explicitly included transgender and gender nonconforming people. (13) The Equal Employment Opportunity Commission...

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Gale Document Number: GALE|A705927144