Supreme Court to Take on LGBTQ Rights in the Workplace

Some of the most closely-watched cases the US Supreme Court will consider in October involve whether workplace discrimination based on sexual orientation and transgender status is covered by Title VII of the Civil Rights Act of 1964 (Title VII). These will be the Court’s first cases on LGBTQ rights since the retirement of Justice Anthony Kennedy, who provided key votes in expanding gay rights.

Discrimination Protections Under Title VII

Title VII provides in pertinent part: “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Because the law does not define “sex,” questions have arisen concerning the appropriate legal standard for establishing claims of gender identity and sexual orientation discrimination.

Sexual Orientation

Two of the cases involve whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII. They have been consolidated for oral argument.

In Altitude Express Inc. v. Zarda, the justices will determine whether Title VII’s prohibition against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation. The estate of Donald Zarda pursued a discrimination suit on behalf of a deceased gay skydiving instructor who alleged he was fired after disclosing his sexual orientation. The suit included claims under New York state law, as well as Title VII. The district court held that defendants were entitled to summary judgment on plaintiff’s Title VII claim because Second Circuit precedent held that Title VII does not protect against discrimination based on sexual orientation.

On appeal, the Second Court of Appeals reversed its existing precedent. Citing the language of Title VII, it held that “[i]n the context of Title VII, the statutory prohibition extends to all discrimination ‘because of…sex’ and sexual orientation discrimination is an actionable subset of sex discrimination.” In reaching its decision, the court determined that sexual orientation is a subset of sex discrimination. As Chief Judge Robert Katzmann wrote in the plurality opinion, “sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” and that “sexual orientation discrimination is . . . based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted.” In the second case, Bostock v. Clayton County, Georgia, the Eleventh Circuit Court of Appeals held that Title VII does not apply to discrimination based on sexual orientation. Gerald Bostock alleges that his former employer, Clayton County, Georgia, fired him because of his sexual orientation. He asserts that, after the County learned of his sexual orientation, his participation in a gay recreational softball league, and his promotion of volunteer opportunities with the County to league members, the County falsely accused him of mismanaging public funds as a pretext for terminating his employment because of his sexual orientation.

Transgender Rights

The third case, EEOC v. R.G. & G.R. Harris Funeral Homes Inc., involves whether Title VII prohibits discrimination against transgender claimants based on their status as transgender or based on sex stereotyping.

Aimee Stephens (formerly known as Anthony Stephens) was born biologically male. While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. (the “Funeral Home”), a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. According to Rost, allowing Stephens to wear women’s clothes would violate the funeral home’s dress code and force Rost into “violating God’s commands.”

Stephens filed a complaint with the EEOC, which subsequently filed suit against the Funeral Home for violating Title VII. The Sixth Circuit Court of Appeals sided with the EEOC, holding that Title VII protects employees from gender identity-based discrimination. “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female,” the appeals court held.

The Court will hear oral arguments on three cases on October 8, 2019. Please check back for updates.