The Supreme Court Will Decide Whether Federal Civil Rights Law Applies to Sexual Orientation and Gender Identity Discrimination—But Don’t Forget About the States

The U.S. Supreme Court agreed to review three cases involving important questions of LGBTQ rights under Title VII of the 1964 Civil Rights Act.  Two of those cases concern whether the prohibition on gender discrimination includes workplace protections for gay and lesbian employees, and the other concerns whether gender identity discrimination is sex discrimination under Title VII.

The first two cases, Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, which the Court agreed to consider next term, concern whether Title VII’s prohibition on discrimination “because of … sex” covers discrimination against employees on the basis of sexual orientation.  In Zarda, Donald Zarda, who was a skydiving instructor, sued his former employer for discrimination due to his sexual orientation.  In early 2018, the U.S. Court of Appeals for the Second Circuit sitting en banc (with all judges hearing the case) ruled in his favor.  The 10-4 majority found that discrimination on the basis of sexual orientation violates Title VII.

In Bostock, a child welfare services coordinator sued Clayton County, a Georgia county south of Atlanta, for terminating him in 2013 after discovering his involvement in an LGBTQ-friendly softball league.  In that case, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit came to the opposite result, finding that Mr. Bostock’s case was properly dismissed because, it held, sexual orientation is not “sex discrimination” under Title VII.  The Court in Bostock might have been sympathetic to inclusion of sexual orientation discrimination under Title VII, but was stuck with following an older case in which the Circuit Court had ruled otherwise; “we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued.”  The 11th Circuit declined to hear the case en banc.  In a sharply worded dissent from that denial, Judge Rosenbaum cited a report showing that 25 percent of LGBTQ Americans reported experiencing workplace discrimination.  She accused the majority of relying on precedent on a 1979 case that was decided ten years before Price Waterhouse v. Hopkins.  Price Waterhouse, she wrote, “requires the conclusion that Title VII prohibits discrimination against gay and lesbian individuals because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love.”

The Supreme Court also granted review in R.G. & G.R. Harris Funeral Homes v. EEOC on the issue of gender identity.  The Court’s grant of certiorari was specifically on: “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).”   In framing the case in that way, the Court apparently will consider whether gender identity discrimination is sex discrimination, or rather whether it is discriminatory because it involves making employment decisions based on sexual stereotypes as articulated by Justice O’Conner in a well-regarded opinion in Price Waterhouse.

Aimee Stephens had worked for nearly six years as a funeral director at R.G. and G.R. Harris Funeral Homes when she informed the funeral home’s owner that she is a transgender woman and was fired soon thereafter.  The EEOC sued on her behalf and the Sixth Circuit Court of Appeals ruled that the employer engaged in unlawful sex discrimination when it fired her because she’s transgender.  The Sixth Circuit ruled for Ms. Stephens based on the stereotyping theory, finding that discrimination based on her gender identity was rooted in improper stereotypes under Price Waterhouse, finding she had been 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.”  Read more about Harris Funeral Homes in Correia & Puth’s prior post on the case, linked here.

While Title VII does not explicitly prohibit employment discrimination based on sexual orientation or gender identity, it does prohibit discrimination based on sex and courts have recognized protections for LGBTQ plaintiffs under Title VII in the context of this prohibition.  Numerous courts, including the court in Zarda and Harris Funeral Homes, have found that an employer violates federal law when it discriminates against a worker for her sexual orientation or gender identity.

While we wait for the Supreme Court to define “sex” under Title VII, we look to the states where workers have explicit protections.  Twenty-one states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity under state anti-discrimination laws.  Eight states prohibit discrimination against public employees based on sexual orientation.  For example, both the District of Columbia and Maryland protect LGBTQ workers from discrimination in their state laws.  In Maryland, Baltimore County, Howard County, and Montgomery County include sexual orientation and gender identity as part of its employment discrimination laws.  Virginia does not have an explicit statutory prohibition, but in May 2016, the Virginia Attorney General issued an opinion that state law should be interpreted to include discrimination based on sexual orientation or gender identity when the conduct is based on sex-stereotyping or treating them less favorably on account of their gender.

If you are experiencing or have experiences harassment or discrimination because of your gender identity or sexual orientation, the lawyers of Correia & Puth can help you seek justice and navigate the changing legal landscape under federal law. We work zealously to represent clients to seek a fair and just resolution with employers.  Please contact us today.