Employers and employees alike should be aware that an upcoming ruling by the United States Supreme Court regarding lesbian, gay, bisexual, and transgender (LGBT) protections in the workplace could have far-reaching impact.
The Supreme Court, in its October Term 2019, heard three cases regarding LGBT individuals’ claims of civil rights violations at work. One decision regarding all three cases is expected in June 2020.
Is sexual orientation a protected right?
The key question at hand is whether discrimination in the workplace on the basis of sexual orientation is protected under the Civil Rights Act of 1964. Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin, and courts have long been divided over whether sexual orientation is protected under the Act.
The three cases the Supreme Court is examining include two cases in which appeals courts determined that the firing of gay and transgender employees violated Title VII of the Act and a third case in which the court determined that civil rights laws do not protect from discrimination in the workplace based on sexual orientation.
The “trilogy” of cases may test the court, according to a scotusblog.com post by the Solicitor General of Tennessee, Andrée Sophia Blumstein. The cases are “crucially significant because the court will decide the scope of workplace protection for LGBT employees,” Blumstein wrote. “And indeed, these three cases are highly significant, but also for a very different reason: How they are decided will signal whether the court is inclined to stay in its constitutionally assigned lane as expositor of the law and avoid veering into the policy-making lane reserved for Congress.”
In fact, during oral arguments October 8, Supreme Court Justice Neil Gorsuch admitted there are strong arguments that Title VII could be interpreted to protect LGBT rights. However, he questioned whether Congress might instead address the subject, due to the possibility of a “massive social upheaval that would be entailed” should the Supreme Court decide that sex discrimination under Title VII covers transgender people “and the possibility that . . . Congress didn’t think about it.”
Supreme Court Justice Ruth Bader Ginsburg, however, reminded the Court that “[n]o one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in ’64 . . . And now we say, of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination but it wasn’t recognized to be such in the beginning.”
Further, Supreme Court Justice Sonia Sotomayor questioned “at what point does a court continue to permit invidious discrimination against groups that, where we have a difference of opinion, we believe the language of the statute is clear[?]”
Sotomayor continued, echoing similar sentiment from Justice Breyer in saying that “Title VII, the Civil Rights Act, all of our acts were born from the desire to ensure that we treated people equally and not on the basis of invidious reasons.”
What is “sex?”
The court also grappled with the meaning of “sex.” The meaning of Title VII of the Civil Rights Act forbids discrimination on the basis of sex, but it does not specifically refer to sexual orientation or gender identity. “So if the objection of the transgender individual is that I want to use a bathroom consistent with my gender identity, rather than biological sex,” Chief Justice John Roberts questioned, “do you analyze it as—the affecting based on the transgender status or do you analyze it on the basis of biological sex?”
Justice Elena Kagan countered that the statute is about the individual. “Title VII . . . is a statute about individuals and whether individuals are being treated differently because of his or her sex,” Kagan said. “It’s a statute that uses the word ‘individual’ twice and says is a particular person being treated differently because of her sex? And here, Ms. Stephens [the Plaintiff], was being treated differently because of her sex.”
The following three cases, being heard as one, are the basis of the Supreme Court’s examination:
R.G. & G.R. p, Inc., v. Equal Employment Opportunity Commission—Aimee Stephens had worked as a funeral director at R.G. and G.R. Harris Funeral Homes for nearly six years when she informed the funeral home’s owner that she is a transgender woman, according to the American Civil Liberties Association (ACLU), which is representing Stephens. “She was fired, the EEOC sued on her behalf, and the Sixth Circuit Court of Appeals ruled that Aimee’s employer engaged in unlawful sex discrimination when it fired her because she’s transgender,” the ACLU said.
Gerald Lynn Bostock v. Clayton County, Georgia—Gerald Bostock was fired from his job as a child welfare services coordinator in 2013 after he joined a recreational gay softball league. Bostock contends that his firing is a violation of Title VII of the Civil Rights Act, which prohibits sex discrimination, and which Bostock’s legal team argues applies to sexual orientation.
Altitude Express Inc. v. Zarda—Donald Zarda was terminated from his job as a skydiving instructor after he revealed his sexual orientation to a female client. Because Zarda has since died, his case is being pursued by his family. The termination followed multiple anti-gay encounters from the employer.