On October 8, 2019, the Supreme Court will hear oral arguments in three landmark LGBTQ+ rights cases, which could broaden protections for the LGBTQ+ community by prohibiting employers from discriminating against employees based on their sexual orientation, transgender-status, or gender identity under federal law. Currently, conflicting federal cases and shifts in interpretation and policies at administrative agencies such as the Equal Employment Opportunity Commission and the Department of Justice have left employers without clear guidance on what is, or is not, protected at a federal level (separate and apart from state and local protections). In Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, since consolidated, the Court will consider whether the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, the Court will consider whether Title VII prohibits discrimination against transgender people. The cases are summarized below.
Altitude Express, Inc. v. Zarda / Bostock v. Clayton County, Georgia – factual background
Donald Zarda worked as a skydiving instructor for Altitude Express, Inc., responsible for taking clients on tandem skydives, strapped hip-to-hip and shoulder-to-shoulder to the client. In June 2010, while carrying out a tandem skydiving session with a young woman, Zarda stated he was gay in defense of a female client’s allegation that he touched her inappropriately. Altitude Express terminated Zarda’s employment on the grounds that he shared inappropriate information with clients regarding his personal life. After a three-judge panel ruled against Zarda, the Second Circuit, in an en banc decision, overturned the lower court, holding that discrimination based on sexual orientation violates Title VII.
Gerald Lynn Bostock, who identifies as gay, began his work as a Child Welfare Services Coordinator for Clayton County, Georgia in 2003. During his tenure, he was responsible for the Court Appointed Special Advocates (CASA) program, a children’s legal aid program. CASA volunteers (known as guardians ad litem in other jurisdictions) are appointed by the judge of the juvenile courts to advocate on behalf of the “best interests of the child” during juvenile court dependency proceedings in Georgia. In January 2013, Bostock began playing in a gay recreational softball league in Atlanta, and used his connections to promote the Clayton County CASA program as a volunteer opportunity for other league members. According to Bostock, within a few months, his league participation and sexual orientation were widely criticized by County decision makers. In June 2013, Bostock’s employment was terminated for “conduct unbecoming of a county employee.” In its defense, the county represents it terminated Bostock’s employment for mismanaging CASA program funds, which Bostock denies and cites as pretext for discrimination based on his sexual orientation. The Eleventh Circuit affirmed the district court’s dismissal of Bostock’s complaint, holding that Title VII does not prohibit sexual orientation discrimination.
R.G. & G.R. Harris Funeral Homes v. EEOC Commission – factual background
Tom Rost, owner of the Harris Funeral Homes (Harris), hired Anthony Stephens, a biological male, as a funeral director apprentice in 2007. All Harris employees are required to follow the funeral home’s professional dress code, which Harris administers based on the biological sex of its employees, not their gender identity. Harris provides its funeral directors with matching suits: pant suits for male funeral directors and skirt suits for female funeral directors. For nearly six years, Stephens wore the suit and tie that Harris provided to male employees, without questioning the funeral home’s sex-specific dress code. In 2013, Stephens wrote a letter to Rost advising of his gender dysphoria and identification as a female, and insisted on dressing and presenting as a woman while working at the funeral home. The letter was signed by “Anthony Stephens” and “Aimee A. Stephens.” Rost represented that he took the matter under advisement for two weeks before deciding that he would not allow Stephens to dress as a woman because it would violate the company’s dress code. The Sixth Circuit reversed dismissal by the district court and ordered judgment for the EEOC, holding that the word “sex” under Title VII includes “gender identity” and also protects “transitioning status.”
Arguments before the Supreme Court
The legal arguments before the Court are complex. To briefly summarize, arguments in favor of including sexual orientation and gender identity within the protections of Title VII include: the broad interpretation of the phrase “because of sex”; that because associational discrimination jurisprudence prohibits discriminating against someone of a particular race for dating or marrying persons of a different race – and therefore, discriminating against someone of a particular sex or dating or marrying someone of the same sex should also be prohibited; just as firing an employee for intending to change her religion is religious discrimination, firing someone for attempting to change her sex is sex discrimination; and discrimination based on a person’s sexual orientation or gender identity involves using sex stereotypes based on normative beliefs about how a person of a particular sex should behave, thus violating Title VII under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (“We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”).
Key arguments against an expansive reading of Title VII include: the plain language of Title VII includes only “sex” – not sexual orientation or gender identity; when Title VII was drafted in 1964, the word “sex” meant biological sex; if Congress intended sexual orientation or gender identity to be among the protected classes under Title VII, it would have amended the statute; Congress has rejected at least a dozen proposals to add “gender identity” to Title VII, even while enacting multiple federal laws listing either “sex” or “gender” alongside “gender identity”; and distinguishing the holding in Price Waterhouse because it did not bar sex stereotyping per se, but instead merely recognized that evidence of sex stereotyping can be relevant in proving a plaintiff’s claim that an employment action was motivated by sex.
What happens next?
The legal community is divided on how they believe the Court will rule on these three cases, and these outcomes are likely to be among the most controversial opinions issued from the 2019-2020 term. Regardless of the result, it is important for employers to be aware of the arguments made by each side and prepare for how these opinions may impact day-to-day business, including required updates on policies, procedures, and employment handbooks. In the meantime, employers must continue to comply with state laws and municipal ordinances already including sexual orientation and gender identity within their protections.