The Supreme Court today hears two cases that consider whether Title VII of the 1964 Civil Rights Act prohibits sexual orientation discrimination in the workplace and a third case that considers whether Title VII prohibits discrimination against transgender people.
Bostock v. Clayton County involves a man who was fired from his job as a child welfare services coordinator because he was gay. The U.S. Court of Appeals for the 11th Circuit rejected Gerald Bostock’s claim and held that Title VII—which prohibits discrimination “because of … race, color, religion, sex, or national origin”—should not be read to include sexual orientation as a protected class. Altitude Express v. Zarda involves a skydiving instructor named Donald Zarda who was also fired because he was gay. (Zarda died in 2014; his case is being carried on by executors of his estate.) The U.S. Court of Appeals for the 2nd Circuit came to the opposite conclusion from the 11th Circuit and ruled that Title VII’s prohibition on sex discrimination included discrimination based on sexual orientation.
The core of Bostock’s and Zarda’s argument for why sexual orientation discrimination violates Title VII is that their sex was ultimately the reason for their termination. If either had been female and had expressed sexual interest in men, reason their lawyers, then they would not have lost their jobs. Therefore, they were fired “because of … sex,” in violation of Title VII.
Both also point to the decision Oncale v. Sundowner Offshore Services, Inc., in which the Supreme Court unanimously held that Title VII could be read to prohibit same-sex sexual harassment even if the drafters of the law did not envision it applying to same-sex discrimination. “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Justice Antonin Scalia wrote in the opinion for the Court, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
The third Title VII case the Court hears today is R.G. & G.R. Funeral Homes v. Equal Employment Opportunity Commission, which involves a claim by Aimee Stephens, who was fired by her employer after undergoing sex-reassignment surgery and identifying as a women. A federal district court ruled that Title VII does not prohibit discrimination based on gender identity, but the Court of Appeals for the 6th Circuit reversed.
Stephens’ argument is similar to that of Zarda and Bostock in that she argues her employer would not have fired her if she was assigned the sex of female at birth and therefore she was subject to discrimination because of her sex. She also argues that she was fired because of her inability to conform to her employer’s assumptions about gender roles, which is prohibited under the Supreme Court’s ruling in the 1989 case Price Waterhouse v. Hopkins.
The Title VII cases are among the most closely watched cases of the new term. Over two hundred large U.S. companies, including Amazon, Bank of America, Northrup Grumman, and Dow, filed a joint amicus brief in favor of adopting sexual orientation and transgender identification as a protected class under Title VII. The brief warns that failing to do so would cause “wide-ranging, negative consequences” on many U.S businesses.
Currently, over half the states have no laws protecting against discrimination based on sexual orientation and gender identity.
This Post was Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.