The US Supreme Court announced it would hear appeals in three cases presenting the question whether the 1964 Civil Rights Act’s employment nondiscrimination provisions cover claims of sexual orientation and gender identity discrimination. The three cases involve the ’64 Act’s Title VII, which prohibits employment discrimination on the basis of sex, and the high court’s April 22 announcement indicated they would be heard in the next term beginning in October.
Since federal courts tend to follow Title VII precedents in interpreting the sex discrimination provisions in other areas of federal law — including fair housing and equal educational opportunity — rulings in these three cases could have broad implications for areas beyond simply employment discrimination.
One of the three cases the high court will take up was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County Juvenile Court System in Georgia, where he worked in child welfare services, because of his sexual orientation. The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed that dismissal based on a 1979 circuit precedent that Title VII does not forbid discrimination against gay people.
The second was filed by Altitude Express, a now-defunct skydiving company that fired Donald Zarda, a gay man who claimed that was due at least in part to his sexual orientation. A federal trial court in New York, applying precedents from the Second Circuit, rejected his Title VII claim. The Court of Appeals, however, in an en banc hearing of the full Second Circuit bench, overruled numerous of its earlier precedents and found that the Title VII claim should not have been dismissed since that law applies to sexual orientation discrimination.
The third petition was filed by the Detroit area Harris Funeral Homes, which fired a funeral director, Aimee Stephens, who had been hired while still living as a man, when Stephens told owner Thomas Rost about her planned transition. When the federal Equal Employment Opportunity Commission (EEOC), the agency responsible for overseeing Title VII enforcement, sued the funeral homes under Title VII, Rost voiced religious objections to gender transition and claimed he was free of liability under the Religious Freedom Restoration Act (RFRA). Stephens intervened in that case as a co-plaintiff.
The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability. The Cincinnati-based Sixth Circuit Court of Appeals affirmed the trial court’s ruling on the Title VII violation but reversed on the question of RFRA, finding that complying with Title VII would not substantially burden the funeral homes’ free exercise of religion. In concluding that Title VII had been violated, the Sixth Circuit relied not only on its ruling in a 2004 case, under which it found Smith to be the victim of impermissible sex stereotyping, but also concluded that gender identity discrimination is in and of itself a form of sex discrimination under Title VII.
In all three cases, the high court will consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because of their status as either a woman or a man, or if, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.
The Supreme Court lingered over whether to take up these cases for nearly a year. The appeals in Bostock and Zarda were both filed last May; the Harris Funeral Homes case was filed in July. Prior to these cases being accepted for review, only nine others had been scheduled for the new term in October, so these could be argued by November, with decisions potentially handed down by early 2020, just as the presidential primary season is heating up.
In the early years after Title VII became law, the EEOC and federal courts agreed that it offered no jurisdiction over complaints charging sexual orientation or gender identity discrimination. The lower courts’ attitudes began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, where the accounting firm denied partnership to a woman deemed insufficiently feminine in her demeanor. In 1998, in Oncale v. Sundowner Offshore Services, the high court found that Title VII could apply to a same-sex harassment case. The late Justice Antonin Scalia’s opinion for the court there suggested that Title VII applied not only to the specific concerns of the legislators who enacted it, but would extend to “comparable evils.”
As a result of this more flexible approach to sex discrimination, federal courts in this century began reconsidering their earlier rulings in LGBTQ discrimination cases. Appeals courts applied the Price Waterhouse sex stereotyping analysis to claims by transgender plaintiffs, leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the government on the grounds that gender identity discrimination was inherently sex discrimination. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the US Transportation Department. The EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBTQ plaintiffs — or, alternately, by filing friend of the court briefs — in such cases as Zarda v. Altitude Express.
In the Harris Funeral Homes case, the Sixth Circuit became the first federal appeals court to go beyond the sex stereotyping theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex. The EEOC’s argument along the same lines regarding sexual orientation discrimination was adopted by the Chicago-based Seventh Circuit Court of Appeals in 2017. The losing employer in that case, an Indiana community college that had declined to rehire a lesbian instructor, did not appeal. The Second Circuit similarly endorsed the EEOC’s view in the Zarda case last year.
When the Zarda case (now carried on by his estate in the wake of the gay plaintiff’s death) was argued in front of the Second Circuit, the judges were both amused and confused that the EEOC and the Department of Justice argued opposite sides of the case. The EEOC was then still controlled by commissioners whom President Barack Obama had appointed, while then-Attorney General Jeff Sessions had adopted the position that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.
When it agrees to hear appeals, the Supreme Court sometimes tips its hand by reframing the questions posed by the petitioner. It did not do this regarding sexual orientation, merely stating that it was consolidating the Bostock and Zarda cases. In the Harris Funeral Homes case, the court limited consideration to the question “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.” The Supreme Court’s use of the phrase “status as transgender” is unusual since the phrase “gender identity” fits more neatly into Title VII terminology.
None of the court’s members have addressed the questions presented in these three cases during their judicial careers, so venturing predictions is difficult. The four most recent appointees to the court with substantial federal judicial careers prior to their Supreme Court appointment — Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh — have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the DC Circuit Court of Appeals. Still, any justice committed to construing civil rights laws narrowly in the context of the time they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to cover sexual orientation or gender identity discrimination.
Seasoned Supreme Court advocates are likely to be brought into these cases on behalf of the numerous parties, but it is worth noting that the roster of attorneys already includes John A. Knight of the ACLU Foundation, Chicago, who represents Aimee Stephens, and the anti-LGBTQ religious liberty litigation group Alliance Defending Freedom, which represents Harris Funeral Homes.
The high court has still not taken action on two other pending petitions regarding LGBTQ rights — a Title IX case challenging the Boyerstown, Pennsylvania, school district’s decision to let transgender students use facilities consistent with their gender identity, and an Oregon state court decision rejecting a baker’s First Amendment defense against a same-sex couple’s discrimination claim brought when he refused to make them a wedding cake.