By: Robert W. Corbisier and Rosemary Hanson, Alaska State Commission for Human Rights
Last year’s United States Supreme Court decision Bostock v. Clayton County represented a sea change under Alaska law for LGBTQ+ individuals’ rights to be free from discrimination. LGBTQ+ individuals may now file complaints with the Alaska State Commission for Human Rights (ASCHR) when they face discrimination in the workplace, in places of public accommodation, in credit and financing, the sale and rental of real property, and government practices.
At various times since at least the late 1970s, both ASCHR and the Alaska Legislature have considered proposals to explicitly protect sexual orientation and/or gender identity from discrimination under Alaska law, but to date no legislation has become a law.
Several years prior to Bostock, the U.S. Equal Employment Opportunity Commission (EEOC) started holding the position that sexual orientation and gender identity were protected under Title VII of the Civil Rights Act of 1964 (Title VII) for employment discrimination. But the EEOC’s jurisdiction is limited to businesses with at least 15 employees, essentially leaving small employers in Alaska to freely discriminate against LGBTQ+ employees unless the employer fell within a municipality that otherwise protected LGBTQ+ rights.
However, the Alaska Supreme Court applies the Title VII framework when interpreting Alaska’s state Human Rights Law. Based upon Bostock, prior Alaska decisions, and guidance from the Alaska Department of Law, ASCHR began accepting LGBTQ+ discrimination claims—not only for employment discrimination, but for its other four subject matter jurisdictions as well: places of public accommodation, credit and financing, the sale and rental of real property, and government practices.
The importance Bostock has on future LGBTQ+ decisions cannot be understated. In addition to the expansion of LGBTQ+ rights under Alaska law, the decision was supported by the EEOC and provided much-needed clarity on Title VII’s reach under federal law to promote equal opportunity in the workplace.
“All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination. The Supreme Court’s decision in Bostock v. Clayton County is a historic milestone that resulted from the struggle, sacrifice, and vision of many brave LGBTQ+ individuals and allies who had championed civil rights for the LGBTQ+ communities,” commented EEOC Chairperson, Charlotte A. Burrows.
Bostock centered on three LGBTQ+ employment anti-discrimination cases – Bostock v. Clayton County, Altitude Express, Inc v. Zarda, and R.G. & G.R. Funeral Homes Inc v. Equal Employment Opportunity Commission. Both Gerald Bostock and Donald Zarda argued that they were discharged from employment because they are gay, and the late Aimee Stephens (the complainant against R.G. & G.R. Funeral Homes) argued she was discharged from employment due to her transgender status. The Court held that the word “sex” encompasses sexual orientation and gender identity, and therefore they are included among the protected classes under Title VII.
While this monumental decision provided an important basis for future cases involving LGBTQ+ workplace discrimination, it also left much open to interpretation. Questions surrounding whether religion can be used by employers to combat LGBTQ+ discrimination lawsuits, legality of having sex-segregated bathrooms or changing rooms, or gender specific dress codes, were not addressed in Bostock and remain open questions under Alaska law.
The EEOC began giving clarity on the topic of sex-segregated bathrooms. According to its website, employers retain the right to have separate, sex-segregated bathrooms, locker rooms, and showers, but LGBTQ+ protections remain. “The [EEOC] has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity,” according to its website.
The EEOC has provided new employment resources related to LGBTQ+ rights to promote a workplace free of sexual orientation and gender identity discrimination. ASCHR has additional Alaska-specific guidance forthcoming as well.
More EEOC information can be found at the following webpages:
ASCHR’s guidance documents, including its forthcoming LGBTQ+ guidance, can be found at: https://humanrights.alaska.gov/human-rights-commission-annual-reports/
Robert W. Corbisier is the Executive Director for ASCHR. Rosemary Hanson is an EEOC Intake Information Representative housed at ASCHR.