The U.S. Supreme Court is set to rule on a trio of cases that will (hopefully) settle the question as to whether the definition of "sex" under Title VII of the Civil Rights Act of 1964, as amended ("Title VII") includes sexual orientation and gender identity. By its text, Title VII protects employees and job applicants against employment discrimination on the basis of "race, color, religion, sex, or national origin." The definition of "sex" under Title VII has been the subject of much debate, with courts and the federal government coming out on opposite sides. Specifically, the Equal Employment Opportunity Commission ("EEOC") and the United States Court of Appeals for the Second and Seventh Circuits have each determined that the term "sex" may be defined to include sexual orientation. The United States Court of Appeals for the Eleventh Circuit, however, has held that Title VII does not prohibit discrimination on the basis of sexual orientation – a position also currently held by the U.S. Department of Justice.
Sexual orientation discrimination
In 2017, the Seventh Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) was the first appeals court to recognize sexual orientation as a form of discrimination protected by Title VII. That ruling followed the EEOC's 2015 decision in Baldwin v. Foxx, EEOC Decision No. 0120133080 (July 15, 2015) where the EEOC announced it will treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII.
In 2018, the Second Circuit followed suit and held that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII and sex stereotypes. In Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018) (en banc), Donald Zarda was a sky-diving instructor who told a client strapped to him for a tandem skydive that he was a homosexual. The client told her boyfriend that Zarda had inappropriately touched her and disclosed his sexual orientation in an effort to excuse his otherwise inappropriate behavior. After the client's boyfriend complained, Altitude Express terminated Zarda's employment. Zarda filed suit alleging that Altitude Express terminated his employment because of his sexual orientation and that this was protected under Title VII as sex stereotyping. The district court rejected the claim and the Second Circuit affirmed relying on precedent that a sex stereotyping claim cannot be predicated on sexual orientation. Upon rehearing en banc, a divided court overturned the panel decision.
The Eleventh Circuit in Bostock v. Clayton County, 723 Fed. App'x. 964 (11th Cir. 2018) reached the contrary conclusion, holding that sexual orientation is not protected by Title VII's prohibition against discrimination on the basis of sex and reaffirming that circuit's precedent. The plaintiff Gerald Lynn Bostock alleged that he was fired from his job as the Child Welfare Services Coordinator with Clayton County, Georgia because of his sexual orientation after disparaging comments were made about his sexual orientation.
The Zarda and Bostock cases were appealed to the U.S. Supreme Court and oral argument on the consolidated cases took place on October 8, 2019. Much of the debate centered on the meaning of "sex" when Title VII was passed in 1964. Justice Ruth Bader Ginsburg observed, at the time, male same-sex relations were a criminal offense and the American Psychiatric Association had labeled homosexuality a mental illness. Justice Samuel Alito expressed concerns about changing "the meaning of what Congress understood sex to mean." Counsel for Zarda and Bostock responded that the Supreme Court has recognized other forms of sex discrimination that Congress could not have contemplated when it enacted Title VII, such as sexual harassment in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) and discrimination based upon sex-stereotypes in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Counsel for the employers argued that sex and sexual orientation are independent and distinct characteristics and sexual orientation discrimination by itself is not sex discrimination under Title VII. The Justices, however, probed counsel as to how a person's sexual orientation can be independent of sex. Justice Neil Gorsuch appeared sympathetic to the employees' arguments, suggesting that sex appears to be a factor in the terminations.
Gender identity discrimination
The Supreme Court also heard oral argument in R.G. & G.R. Harris Funeral Homes v. EEOC, 884 F.3d 560 (6th Cir. 2018), a case where the Sixth Circuit decided that Title VII prohibits discrimination on the basis of gender identity. The plaintiff, Aimee Stephens, worked as a funeral director. After appearing and dressing as a man for several years, she disclosed to her employer that she identified as female, intended to have sex-reassignment surgery, and the first step was to live and work as a woman for one year. Her employer responded that "this is not going to work out" and offered Ms. Stephens a severance agreement. Ms. Stephens sued and alleged discrimination on the basis of sex under Title VII. The district court granted summary judgment in favor of the employer, but the Sixth Circuit reversed, finding that discrimination on the basis of gender identity is unlawful sex stereotyping under Title VII.
In oral argument, counsel for Ms. Stephens argued that she is being treated differently because of the sex she was assigned at birth and her failure to conform to the sex stereotypes of her employer. If she had been assigned a female sex at birth, counsel argued, she would not have been fired for wanting to come to work dressed as a woman. Counsel for the employer argued that treating men and women equally does not mean that employers need to treat men as women.
During oral argument, hypotheticals took precedence, centered on the impact the Court's decision will have for society and specifically, what it would mean for gender-specific restrooms and sports teams with transgender athletes. Justice Gorsuch remarked that the case was "really close" as a matter of textual interpretation, but raised concerns about the "massive social upheaval" that would flow from such a view of Title VII's protections – an issue which may be more appropriate for the legislature to take up.
Potential impact of the Supreme Court's opinion
For many years, Nevada has expressly prohibited discrimination based upon "sex, sexual orientation, gender identity or expression" by employers having 15 or more employees. NRS 613.330. Protections based upon sexual orientation were added in 1999 and protections for gender identity were added in 2011. And now, employees may recover the same damages available under Title VII. In the 2019 Legislative Session, Nevada legislators passed Senate Bill 177 which provides that if a court finds that an employee has been discriminated against in violation of NRS 613.330, the court may award the employee the same legal and equitable relief that may be awarded to a person pursuant to Title VII. Therefore, a ruling by the U.S. Supreme Court recognizing a cause of action under Title VII based upon sexual orientation or gender identity would bring federal law into conformity with state law in Nevada.
However, nationwide less than half of states offer similar protections for LGBT employees. The Supreme Court's opinion could dramatically alter this landscape by federally prohibiting discrimination based on sexual orientation or gender identity. Justice Gorsuch's questioning of the parties suggests he may be the swing vote on these closely watched pivotal cases. A decision is expected by early summer 2020.
Originally published by Clark Country Bar Association
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