By Meghan Lehner, Cleveland Lehner Cassidy
The U.S. Supreme Court heard three cases earlier this month that ask whether it is legal to fire workers because of their sexual orientation or gender identity. The sexual orientation discrimination cases were consolidated and involve a fired skydiver in New York, who has since died (Altitude Express Inc. v. Zarda) and a fired county government worker in Georgia (Bostock v. Clayton County, Georgia.) Both claim that they were terminated because they are gay. In the third case, Aimee Stephens, a woman who was fired from her job as a funeral home director in suburban Detroit, believes that she was terminated because of her gender identity (R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.)
The text of the Title VII of the Civil Rights Act of 1964 bans only “sex” discrimination, not discrimination based on a worker’s sexual orientation or gender identity. The U.S. Supreme Court (SCOTUS) has already recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In 1998, in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), SCOTUS set the precedent for analyzing same-sex harassment and sexual harassment without motivation of "sexual desire" by stating that any discrimination based on sex is actionable if it places the victim in an objectively-disadvantageous working condition, regardless of the gender of the victim or the harasser.
Federal appeals courts have been split on the question of whether Title VII prohibits discrimination based on sexual orientation since 2017, when the U.S. Court of Appeals for the Seventh Circuit became the first to rule that gay men and lesbians should be covered. In Hively v. Ivy Tech Cmty, Coll. of Ind., 853 F.3d 339 (7th Cir. 2017), an 8-3 en banc decision, the Seventh Circuit agreed with the Equal Employment Opportunity Commission (EEOC) that Title VII's prohibition on sex discrimination incorporates a prohibition on sexual orientation discrimination, overruling its contrary prior precedent. Chief Judge Diane Wood, writing for the majority, first relied on the "comparative method" of analysis, reasoning that "Hively alleges that if she had been a man married to a woman . . . and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. . . .This describes paradigmatic sex discrimination." The majority also relied upon the gender-stereotyping theory articulated in Price Waterhouse: "Viewed through the lens of the gender non-conformity line of cases," the majority said, "Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual."
Next, the majority relied on the "associational theory," likening discrimination because of same-sex relationships to discrimination because of mixed-race relationships. Finally, the majority pointed to the "backdrop" of the SCOTUS's decisions regarding sexual orientation. Tracing the evolution of case law from Romer v. Evans, 517 U.S. 620 (1996), through Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the majority described an evolving sense that laws "ʻburden[ing] the liberty of same-sex couples . . . abridge central precepts of equality.'" The U.S. Court of Appeals for the Second Circuit ruled for Zarda last year, but the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, ruled against Bostock. The U.S. Court of Appeals for the Sixth Circuit ruled in Stephen’s favor concluding that Title's VII "discrimination by sex" does include transgender persons.
During the Obama years, the EEOC had changed its longstanding interpretation of civil rights law to include discrimination against LGBT people. The Trump administration and the employers being sued claim that turning a blind eye to a person's sex could threaten dress codes, physical fitness requirements and even separate restrooms for men and women, all of which have been upheld by courts until now. Counsel for the employers made the argument that it’s not sex discrimination under the law as long as the employer treats gay and lesbian employees the same. According to them, if the employer fires all people involved in same-sex relationships, the employer may be treating those employees adversely based on sexual orientation—but it’s not based on their sex, since gay men and lesbians are equally mistreated. While counsel for the employees argued that “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”
The cases were SCOTUS’s first on LGBT rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions. And without Justice Kennedy, who joined four liberals in the 5-to-4 ruling granting same-sex couples the right to marry, the workers who sued their employers in the three cases before the court may face an uphill fight. If SCOTUS holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping. All workers — straight or queer, trans, cis, or non-binary — could become less secure in their jobs.
Rulings in the cases are due by the end of June 2020. Additional information on the cases can be found here and here.
If you would like to submit content or write an article for the Labor & Employment Law Section, please email Kara Sikorski at email@example.com.