Early next month, the Supreme Court will hear arguments for three cases to determine the scope of the ban on workplace sex discrimination as it is stated in Title VII of the Civil Rights Act of 1964. The Court’s grant of certiorari in this matter signals a newfound readiness to address the issue after years of declining to hear cases that aim to resolve the meaning of “sex discrimination” in Title VII.
The decisions of the justices in these cases will depend on the crucial issue of statutory interpretation; more specifically, should Title VII be interpreted strictly in the terms that the drafters intended at the time they were written, or do courts have the freedom to make the meaning of laws malleable for the sake of modern-day context? In the words of these specific cases, does a bar on sex discrimination extend to include sexual orientation and/or gender identity discrimination?
Title VII of the Civil Rights Act, the federal provision banning workplace bias, makes it illegal for an employer to “fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” This key provision has protected American workers from discrimination for decades by declaring that these protected personal traits should have no relevance to the “selection, evaluation, or compensation of employees.”
“…Should Title VII be interpreted strictly in the terms that the drafters intended at the time they were written, or do courts have the freedom to make the meaning of laws malleable for the sake of modern-day context?”
In recent months, federal appeals court decisions have fallen on either side of the issue of whether Title VII encompasses discrimination based on an LGBTQIA employee’s sexual orientation and/or gender identity. While most (including the United States Court of Appeals for the Eleventh Circuit, with jurisdiction over federal cases originating in Florida, Alabama, and Georgia) have determined that Title VII does not provide a prohibition on sexual orientation discrimination, the Equal Employment Opportunity Commission (EEOC) and the United States Court of Appeals for the Second and Seventh Circuits have issued decisions in opposition, ruling conversely that the term “sex” in Title VII does cover sexual orientation as well in the context of workplace discrimination.
Accordingly, all three cases have proven to have variable procedural outcomes and different sets of facts. For oral arguments, the justices have consolidated two of the cases because they both present the identical question of whether discrimination against an employee, driven by their sexual orientation, constitutes prohibited sex discrimination as it is stated in Title VII. In Bostock v. Clayton County, Georgia, the Eleventh Circuit determined that a gay man working as a Child Welfare Services coordinator for the Clayton County Juvenile Court System was barred from bringing a claim against his former employer under Title VII for sexual orientation discrimination because being fired for “homosexuality is not prohibited by Title VII,” whereas in Altitude Express v. Zarda, the Supreme Court will evaluate Second Circuit’s decision that a gay skydiving instructor was protected under Title VII when he was fired by his employer for “honestly referr[ing] to his sexual orientation”. Writing for the majority of the 13-judge panel of the U.S. Court of Appeals for the Second Circuit in Zarda, Chief Judge Robert A. Katzmann stated, “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
The third case, R.G & G.R. Harris Funeral Homes Inc. v. EEOC, which will be argued separately, presents a related but different challenge to Title VII protections than Bostock and Zarda. R.G. & G.R. Harris involves a Michigan funeral home and its owner, which terminated Funeral Director Aimee Stephens shortly after she informed the owner that she would be transitioning from male to female and would begin living openly as a woman. Two weeks after receiving this notice, the home’s owner, Thomas Rost, fired Ms. Stephens for violating the employee dress code, stating that, specifically, the termination was motivated by the fact that “he was no longer going to represent himself as a man. He wanted to dress as a woman.” Stephens filed a discrimination complaint with the EEOC, which filed a lawsuit on her behalf against R.G. & G.R. Harris Funeral Homes. The American Civil Liberties Union (ACLU) has also joined the case to counsel Stephens. In contrast to Bostock and Zarda, which test whether Title VII’s protects sexual orientation, Stephens asks whether the law also makes it illegal to discriminate against transgender employees, based on either the straightforward definition of “sex” in terms of one’s status as a transgender or, alternatively, under a theory of sex stereotyping, which the Supreme Court determined a violation of Title VII in the 1989 ruling Price Waterhouse v. Hopkins. The Sixth Circuit held that Title VII does bar discrimination in the workplace against transgender employees, concluding that transgender discrimination falls under sex discrimination in that “discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.” That is, Harris Funeral Homes’ decision to fire Stephens because she publicly identified as a transgender person had to have been “motivated, at least in part,” by her sex.
“In contrast to Bostock and Zarda, which test whether Title VII’s protects sexual orientation, Stephens asks whether the law also makes it illegal to discriminate against transgender employees…”
The Sixth Circuit also found for Stephens on the grounds that her employer had engaged in sex stereotyping in a show of judicial deference to the Supreme Court’s Price Waterhouse decision. As a qualifying form of sex discrimination, gender stereotyping involves an employer’s unfavorable treatment towards an employee for their failure to act within the confines of a conventional gender stereotype. Discriminatory stereotyping in this particular case, the Sixth Circuit stated, took place when Stephens was fired for “wishing to appear or behave in a manner that contradicts the funeral home’s perception of how she should behave or appear based on her sex.”
Opponents of expanding Title VII’s definition of “sex discrimination” have largely taken a hard-line stance on statutory interpretation, arguing that a Supreme Court decision to reinterpret the statute to include sexual orientation and/or transgender status would be a dangerous overstep of judicial authority. One of those opponents, the U.S. Department of Justice, submitted a brief to the Court in August, stating that Title VII could not provide a remedy for Stephens as it stands because “in 1964 [when Title VII was enacted], the ordinary public meaning of ‘sex’ was biological sex. It did not encompass transgender status.” Similarly, Altitude Express (Zarda’s former employer) argues that a reading of Title VII to include sexual orientation in the prohibition on discrimination unjustly distorts the original drafters’ intent to protect the equality of men and women in the American workplace. “That law forbids employers from treating employees of one sex better–or worse– than the other sex and doing so because of their sex. It does not reach–and certainly no one in 1964 would have thought it reached–employment actions based on sexual orientation, because those actions do not disadvantage employees of a particular sex.”
The Supreme Court has scheduled to hear arguments on Tuesday, October 8th, during the first week of the 2019 term, with decisions in these cases expected by June 2020. Transcripts of the arguments will be available later in the day on October 8th, and audio recordings on October 11th via the Court’s website, here. The Court’s decisions in these cases will no doubt be momentous and far-reaching, as they have the potential to dramatically impact the lives of LGBTQIA employees in our workplaces across the nation.