With this post, I join the multitude of bloggers writing about the historical announcement yesterday that the Supreme Court of the United States (SCOTUS) will hear and decide a series of cases this fall to determine whether the federal law prohibiting discrimination on the basis of “sex,” Title VII of the Civil Rights Act of 1964 (Title VII), includes sexual orientation and gender identity and expression.

This is big news. Huge.

Let’s check out some history.

On June 26, 2015, SCOTUS decided the 5-4 landmark decision, Obergefell v. Hodges, No. 14-556 (June 26, 2015), determining that the states could not ban same-sex marriage. Prior to June 26, 2015, 36 states permitted same-sex marriage, but the remaining states still prohibited it, and with its ruling, SCOTUS determined that the states could not constitutionally prevent same-sex couples from legally marrying in any state.

Sound familiar?

It should. Currently, 21 states and the District of Columbia prohibit employment discrimination based on sexual orientation and gender identity.

So what’s all the fuss about?

Why did employment nerds on Twitter have a field day yesterday? Eric Meyer had the same question in his pithy post, Why was there an employment law trending on Twitter yesterday? Oh, I think I know.

Well, while a same-sex couple can legally marry, incongruously, the law does not expressly prohibit employers from terminating an employee due to that person’s sexual orientation or gender identity.

Yet, when making an employment decision, the general rule of thumb is to treat employees without regard to their race, sex, religion, age, or any other protected class.

So, you can see where the disagreement lies, and, finally, SCOTUS is poised to rule.

The EEOC’s Position on Gender Identity As “Sex” Discrimination

As I told you here, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII and other anti-discrimination laws, interprets “sex” to include discrimination against lesbian, gay, bisexual, and transgender rights because it is discrimination based on or because of “sex.” Additionally, the EEOC accepts complaints of sexual orientation and gender identity discrimination in employment based on sex discrimination in violation of Title VII.

In fact, the EEOC includes LGBT rights in its 2017-2020 Strategic Enforcement Plan. (Click here if you don’t know what the heck a strategic enforcement plan is.)

What Say the DOJ?

Now, as we know (because Eric Meyer has told us here), the Department of Justice has taken the position that Title VII does not cover discrimination against an individual because of the individual’s gender identity.

Title VII does not provide workplace protection specifically on the basis of sexual orientation or gender identity as separate categories because those terms are not in the federal law.

How Have Courts Ruled? Which Cases Will SCOTUS Consider?

The NYT reported here, and Rich and I have written about, here, here, and here, federal appeals courts are divided about whether Title VII prohibits sexual orientation and gender identity discrimination since these are not explicitly protected classes in the text Title VII. Two appellate courts, in New York and Chicago, recently issued decisions ruling that discrimination against gay men and lesbians is a form of sex discrimination.

The Supreme Court agreed to hear the case from New York, Altitude Express Inc. v. Zarda, No. 17-1623, along with one from Georgia that came to the opposite conclusion, Bostock v. Clayton County, Ga., No. 17-1618.

The third case concerns the separate question of whether Title VII bars discrimination against transgender employees, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107, and involved an employee who was fired from a funeral home after she announced that she was a transgender woman and would start working in women’s clothing.

Thus, as Eric noted here, we have:

  1. In Zarda v. Altitude Express, Inc., the Second Circuit Court of Appeals held that Title VII prohibits discrimination based on sexual orientation. The employer appealed.
  2. In Bostock v. Clayton County, the Eleventh Circuit Court of Appeals held that Title VII permits discrimination based on sexual orientation. The employee appealed.
  3. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals concluded that Title VII bans discrimination based on gender identity. The employee appealed.

Let’s break these rulings down—

In Zarda, the U.S. Court of Appeals for the Second Circuit concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” in its determination that an employee was fired just because of her failure to conform to sex stereotypes, in violation of Title VII. That court stated:

…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 [the employer] violated Title VII by firing Stephens because she is transgender and transitioning from male to female.

…It is analytically impossible to fire an employee based on that employee’s status as transgender … without being motivated, at least in part, by the employee’s sex.

By contrast, the Bostock case in Georgia was brought by a child welfare services coordinator who said he was fired for being gay. The 11th Circuit, in Atlanta, ruled against that plaintiff in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.”

Then, turning to gender identity and expression, in R.G. & G.R. Harris Funeral Homes, the U.S. Court of Appeals for the Sixth Circuit, ruled for the transgender plaintiff, holding here that Title VII barred discrimination against transgender workers. The court explained:

It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.

Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.

It concluded its opinion stating: “[D]iscrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”

Wait, What Is This Sex Stereotyping ? “Title VII Lifts Women Out of This Bind.”

One thing everyone seems to be able to agree on, and SCOTUS has ruled on it, is that sex stereotyping is a form of sex discrimination and violates Title VII.

Discrimination on the basis of gender stereotypes, i.e., how a person should look, dress, and act, is illegal.

In the specific context of sex stereotyping, in Price Waterhouse v. Hopkins, SCOTUS condemned sex stereotyping as a form of sex discrimination finding that allegations of gender identity and transgender discrimination based on non-conformance with gender norms and outdated stereotypes necessarily involve sex discrimination. The Court stated:

[A]n employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender…An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.

I wrote about this very issue last week here when I told you about the company that refused to hire a candidate after learning that he was a transgender man. He filed suit alleging that the company illegally discriminated against him because of his sex and for not conforming to gender stereotypes in violation of Title VII. (EEOC v. A&E Tire, Inc., Civil Action No. 17-cv-02362-RBJ).

SCOTUS Considerations

Title VII prohibits sex discrimination, i.e., discrimination “on the basis of” sex.

None of the terms “sexual orientation,” “transgender,” “gender identity,” and/or “gender expression” is included in Title VII’s prohibition.

Neither is the term “sexual harassment.”

Will SCOTUS take a literalist POV and conclude that because these terms are not written in the statute itself, discrimination based upon transgender status or sexual orientation is not prohibited? But again, if it does, how will SCOTUS distinguish the lack of the term “sexual harassment” in Title VII?

Will SCOTUS punt the matter and call upon Congress to amend Title VII’s existing protections to specifically include sexual orientation and gender identity?

Perhaps SCOTUS will reference that the Equal Protection Clauses of the U.S. Constitution and most state constitutions state that all people are equal, and the LGBT community deserves the full force of the same legal federal protections and/or rely on its sex stereotyping analysis.

We shall see.

Employer Takeaways

However SCOTUS rules, employers want to keep these takeaways in mind:

  • Ensure anti-discrimination and anti-harassment policies in an employee handbook includes a prohibition against sex stereotyping.
  • Employers must ensure that they disseminate these policies throughout the workplace, updated as needed;
  • Ensure all employees, including supervisors, understand these anti-discrimination and anti-harassment policies;
    • What does that mean? Training.
    • It also means obtaining a signed acknowledgement that each employee has reviewed and understood their obligations.
  • Provide regular, interactive training to your employees, yes, but to your supervisors and HR staff too so that they can recognize, respond to, and prevent unlawful discrimination and harassment based on sex stereotypes. Give examples, fact-based scenarios, and pop quizzes.
  • Ensure that senior leaders promote anti-harassment training and anti-discrimination/harassment policies to show commitment from the top of the organization to the bottom.

Rest assured that the EEOC will continue investigating employees’ claims of sex discrimination, based on its interpretation of what that term means. Thus, employers want to continue their best practices and comply with their own state laws.

In the meantime, we wait.