Alexander Dushku and Shawn Gunnarson are shareholders at Kirton McConkie, where they represent an array of religious institutions on various matters. They were counsel of record on amicus briefs on behalf of religious organizations and religious colleges and universities in support of the employers in Bostock v. Clayton County and Harris Funeral Homes v. EEOC . It was only a matter of time before LGBT equality in the workplace became part of federal law, though savvy observers have debated whether that change would take place in Congress or the courts. The Supreme Court’s decision yesterday in Bostock v. Clayton County, Georgia answered that question. With Justice Neil Gorsuch writing for a six-member majority, the Supreme Court held that under Title VII of the 1964 Civil Rights Act, employment “discrimination based on homosexuality or transgender status necessarily entails [unlawful] discrimination based on sex.” The court’s decision raises hard questions about the freedom of religious organizations and schools to continue their faith-based employment practices. (In the spirit of full disclosure, both of us acted as counsel of record on friend-of-the-court briefs representing religious organizations and religious colleges and universities.) First, Bostock calls into question the distinction between LGBT status and conduct. […]
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