For years, the answer to whether American workers were protected against sexual orientation discrimination or gender identity discrimination has been “it depends”. Gay and Trans* workers’ access to civil rights protections have depended on their state’s laws, and on how their local courts had interpreted the federal anti-discrimination statute. Now, the U.S. Supreme Court has announced it will hear three sexual orientation discrimination and gender identity cases. The Justices’ decision could set the stage for Title VII protections for years, or even decades to come.

In this blog post, I will discuss the U.S. Supreme Court grant of certiorari in three cases related to sexual orientation discrimination and gender identity discrimination in the coming session. I will review the facts of each case and the lower courts’ opinions, and discuss concerns some commentators have over the effect Justice Kavanaugh may have on the Court’s decision.

Supreme Court to Answer the Question: Can You Be Fired for Being Gay or Trans*

On April 22, 2019, the Supreme Court announced it was granting certiorari to (agreeing to review) three employment discrimination cases on appeal from circuit courts across the country:

• Zarda v Altitude Express Inc, from the Second Circuit (including New York)

• Bostock v Clayton County, from the Eleventh Circuit (including Georgia)

• EEOC v RG & GR Harris Funeral Homes Inc, from the Sixth Circuit (including Michigan)

These are three cases among many in recent years to take up the question of whether you can be fired for being gay or trans*. Zarda and Bostock address sexual orientation discrimination, while RG & GR Harris Funeral Homes deals with gender identity discrimination. The way the court chooses to rule on these cases could provide a clear answer to whether Title VII protects gay and transgender workers from discrimination at work.

Title VII and Sex Discrimination

The three cases are all based on the same part of Title VII of the federal Civil Rights Act, which says:

“It shall be an unlawful employment practice for an employer … to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….”

Gender discrimination happens when an employer makes employment decisions, including hiring, firing, promotions, or pay determinations at least in part because of the sex or gender of the employee being considered. The question each court had to face is whether discrimination “on the basis of … sex” includes a person’s sexual orientation or gender identity. Here’s what each lower court decided.

Zarda v Altitude Express Inc

Donald Zarda was a skydiving instructor for Altitude Express Inc. Zarda was preparing for a tandem jump, where he and a female client were strapped hip-to-hip and shoulder-to-shoulder. Given the intimate nature of the position, Zarda told her that he was gay “and ha[d] an ex-husband to prove it.” Zarda was later fired at least in part because of his reference to his sexual orientation.

The Second Circuit Court said that was illegal. In discussing Title VII, the court said:

“This ‘broad rule of workplace equality,’ … ‘strike[s] at the entire spectrum of disparate treatment’ based on protected characteristics, … ‘regardless of whether the discrimination is directed against majorities or minorities.’ … As a result, we have stated that ‘Title VII should be interpreted broadly to achieve equal employment opportunity.” (Internal citations omitted)

The court found three reasons a gay or lesbian employee could use to raise sexual orientation discrimination under Title VII:

• Because sexual orientation discrimination is motivated at least in part because of an employee’s sex
• Because sexual orientation discrimination is based on sex stereotyping and assumptions about how each sex can or should be
• Because sexual orientation discrimination is based on “associational discrimination” and motivated by an employer’s objection to romantic relationships between people of particular sexes.

The court held that any of these reasons could be enough to sustain a Title VII sexual orientation discrimination lawsuit.

Bostock v Clayton County

Gerald Bostock was a child welfare services coordinator in Clayton County, Georgia, and a gay man. He filed a federal lawsuit under Title VII saying the county discriminated against him based on his sexual orientation and gender stereotyping.

The Eleventh Circuit reviewed his case and in a short, 3-page decision ruled that he could not sue for sexual orientation discrimination, because Title VII didn’t include sexual orientation in the list of protected traits. The court relied heavily on the fact that earlier courts had found in the same way, ignoring prior U.S. Supreme Court cases to the contrary. The court said:

“And under our prior panel precedent rule, 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 ban decision is issued.”

EEOC v RG & GR Harris Funeral Homes Inc 

Aimee Stephens was born biologically male. She presented as male when she was hired to work at R.G. & G.R. Harris Funeral Homes, Inc. in Michigan. After several years, she sent the owner Thomas Rost, her boss and a practicing Christian, a letter saying that she intended to begin presenting as female and going by her female name, and that she would comply with the funeral home’s gender-specific dress code by wearing skirt suits at work. She was fired, in Mr. Rost’s words, because “he [Aimee] was no longer going to represent himself as a man. He wanted to dress as a woman.”

The court found that this was explicit gender identity discrimination and violated Title VII. It said firing Ms. Stephens based on her letter was motivated by sex stereotypes and gender norms. The court said that Title VII is violated when a person is discriminated against because of her sex, or her desire to change her sex. The court said:

“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.”

Aimee Stephens’ case also raises the issue of whether a religiously observant owner of a for-profit company can use his or her religious belief as a shield against Title VII enforcement. The federal Religious Freedom Restoration Act (RFRA) says that the government may not enforce a religiously neutral law against a person if doing so substantially burdens the individual’s religious exercise unless it is done in the “least restrictive way to further a compelling government interest.” The court found that the funeral home, which was for-profit and performed funerals for families of any faith or no faith, would not be substantially burdened by continuing to employee Stephens after her transition as a transgender woman.

Could a Conservative Supreme Court Cut Down LGBT Employment Protections?

These cases are the first LGBT employment law cases to come before the U.S. Supreme Court since Justice Anthony M. Kennedy stepped down. Kennedy was seen as a champion for LGBT rights on the Court. He personally wrote several key opinions. Now that he has been replaced by Justice Brett Kavanaugh, some commentators are wondering if the more conservative Court will roll back protections for gay and transgender workers. While Justice Kavanaugh has a history of conservative social views, he has stood behind some employees’ workplace discrimination cases in the past.

But trying to predict a U.S. Supreme Court decision is as risky as predicting the weather. Kavanaugh’s position on the particular issues of sexual orientation discrimination and gender identity discrimination remain to be seen, as does whether those opinions will sway any of the other justices on the bench.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law. We know how to navigate the landscape of sexual orientation discrimination and gender identity discrimination. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.