Until 1964, no federal law prevented employers from discriminating against employees, or applicants, on the basis of their race, religion, or gender. That changed when Congress passed the Civil Rights Act of 1964. Title VII of that Act bars employment discrimination, but it does not, however, explicitly cover sexual orientation or gender identity. On April 22, 2019, the Supreme Court (SCOTUS) agreed to decide three cases addressing LGBTQ employment rights under Title VII. By June 2020, the scope of federal anti-discrimination law will be more clear, for better or worse. The cases at issue are Bostock, Zarda, and Harris Funeral Homes.
What does this mean?
At this time, some courts interpret Title VII as protecting against employment discrimination based on sexual orientation and/or gender identity. If SCOTUS decides that Title VII does not provide such protections, all of the federal courts will be bound by that decision and the LGBTQ community will have to rely on state-based protections, which are few and far between (discussed in more detail here). Moreover, the Civil Rights Act of 1964 prohibits discrimination in other areas: Title II applies to public accommodations; Title III applies to public facilities; and Title IV applies to public education. (What is commonly known as “Title IX” prohibits sex discrimination in federally funded education programs and activities as part of the Education Amendments Act of 1972.) The scope of federal protections from discrimination in those statutes will also be affected by the Supreme Court’s decisions in these cases.
What are the cases about?
Title VII and Sexual Orientation
Bostock and Zarda both raise the question of whether Title VII’s protection against employment discrimination “because of such individual’s . . . sex” includes protection from discrimination based on sexual orientation. In both cases, the employers argue that sexual orientation is not protected under Title VII, and that Bostock and Zarda, who are gay, were terminated for reasons other than their sexual orientation.
Mr. Bostock, who worked as the Child Welfare Services Coordinator for the Clayton County Juvenile Court System in Georgia, was fired just months after becoming active with a gay recreational softball league. The lower courts dismissed Mr. Bostock’s complaint, finding that Title VII does not protect employees against discrimination based on sexual orientation, and Mr. Bostock petitioned the Supreme Court to review.
Mr. Zarda, who worked as a skydiving instructor in New York, was fired after disclosing to a female client that he was gay, which his estate argues he did often in an effort to “assuage any concern that [women] might have about being strapped to a man for a tandem skydive.” Mr. Zarda won his case when the 9th Circuit agreed with him that sexual orientation is covered under Title VII. In his case, it is his employer (or, rather, the former owner of the now-defunct business) that is appealing that decision.
The Supreme Court has consolidated these cases.
Title VII and Gender Identity
Harris Funeral Homes raises the question whether Title VII’s protection against employment discrimination because of sex includes protection from discrimination based on gender identity. Ms. Stephens, the funeral director of Harris Funeral Homes in Michigan, presented as a male when she began working in the position but eventually informed the funeral home’s owner and operator that she planned to transition and would present as a female in accordance with her gender identity. Harris Funeral Homes then terminated Ms. Stephens.The 6th Circuit U.S. Court of Appeals agreed that sex-stereotyping was “at least a motivating factor in [the Funeral Home’s] actions” and that “discrimination on the basis of transgender and transitioning status violates Title VII.” Ms. Stephen’s employer is appealing the decision.
Although there were multiple issues raised in Ms. Stephens’ case, the Supreme Court limited the questions to “[w]hether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping . . . .”
If Sexual Orientation and Gender Identity are not listed in Title VII, how can they be covered?
As noted above, Title VII does not explicitly prohibit discrimination based upon sexual orientation or gender identity; however, Title VII similarly does not list sexual harassment or gender stereotypes. Yet over thirty years ago SCOTUS held that sexual harassment is unlawful in violation of Title VII’s protections against discrimination “on the basis of sex,” and a few years later in Price Waterhouse v. Hopkins held the same for discrimination based on gender stereotypes “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”
Moreover, over 15 years ago SCOTUS issued its opinion in Oncale, holding that a male employee subjected to sexual harassment by other men was protected by Title VII’s prohibition against discrimination “on the basis of sex.” Indeed, to the argument that Title VII should be limited to its plain language, Justice Scalia noted that while “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII . . . statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
It is on this basis that the EEOC has interpreted Title VII to forbid discrimination based on both sexual orientation and gender identity: just as sexual harassment and gender stereotypes are inextricably tied to sex, so is discrimination on the basis of sexual orientation and gender identity. Even further, the EEOC has held that discrimination based on sexual orientation is also associational discrimination on the basis of sex—that is, discriminating against an individual because of their relationship with someone of the same sex.
Despite the EEOC’s clear support of this interpretation, the Department of Justice recently has taken the opposite position, filing a brief in Zarda while it was before the 2nd Circuit, and in response to the Harris petition for review. Under the Obama administration, the Justice Department had agreed with the EEOC, but in 2017, then-Attorney General Jeff Sessions issued a memorandum retracting DOJ’s prior position and declaring that “Title VII does not prohibit discrimination based on gender identity per se.”
What next?
In the meantime, there are efforts to pass legislation that would explicitly provide protections for the LGBTQ community without relying on Title VII. The Equality Act, if passed by Congress, would amend the Civil Rights Act to include protections for LGBTQ individuals not just in employment but in other areas such as housing and public accommodations, as well. Moreover, the Equality Act as currently written makes clear that a defendant’s invocation of the Religious Freedom Restoration Act of 1993 would not constitute a valid “claim, defense, or basis for challenging such protections.” However, there currently is no indication that the Equality Act would pass both the House and Senate as things stand.
Regardless of the mechanism, the LGBTQ community needs workplace protections sorely lacking in most of the country.
If you think you are being discriminated against in the workplace based on your sexual orientation or gender identity and want to know what your legal options are, please don’t hesitate to give KCNF a call, at 202.331.9260.
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