Revisiting Title VII: Supreme Court Hears Arguments on LGBTQ+ Workplace
In October 2019, the Supreme Court heard two oral arguments on LGBTQ rights, arguably the most important since Obergefell v. Hodges in 2015. These cases dealt with Title VII of the Civil Rights Act of 1964, which prevents workplace discrimination due to, among other characteristics, sex. Two cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia were consolidated into one oral argument, asking whether Title VII applied to discrimination based on same-sex attraction. Immediately after, the Court heard R.G. and G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which asked the same question for transgender identities. Given these cases, the Supreme Court must decide whether discrimination based on “sex,” as used in Title VII, encompasses discrimination based on same-sex attraction or transgender identity.
To examine this issue, an analysis of the text of Title VII is essential. Title VII prevents employers from discriminating “because of such individual's race, color, religion, sex, or national origin.” [1] There are few clarifications of the term “sex” within the law itself, aside from a note that the law prevents discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” [2] In 1964, the inclusion of “sex” in Title VII would have referred to discrimination based on whether the employee was a man or woman. Today, this characteristic would be interpreted either as gender identity--a personal concept of one’s gender--or sex assigned at birth--typically male or female based on external anatomy. [3] Title VII makes no mention of discrimination due to “sexual orientation” or “gender identity,” which were not popular concepts at the time of the law’s passage.
Given all this, it should be noted that the Supreme Court has previously expanded Title VII beyond the original discriminations it was intended to prevent. In 1986, the Supreme Court recognized sexual harassment as a Title VII violation, thus expanding Title VII past the explicit examples of workplace discrimination listed in text of the law. [4] Later, in Oncale v. Sundowner Offshore Services Inc. in 1998, the Supreme Court ruled that Title VII applied to same-sex sexual harassment though that was not the original concern of Title VII. In their opinion for Oncale, the Court correctly noted that laws often go beyond the “principal evil” they address in order to prohibit “reasonably comparable evils.” [5] Thus, precedent makes it clear that the Supreme Court should continue to understand Title VII without consideration of the original intent of the legislation.
With this in mind, we can examine the recent cases heard by the Supreme Court. Two cases pertained to sexuality involve employees fired after disclosing their gay identities. In Altitude Express Inc. v. Zarda, Altitude Express Inc., a skydiving company, fired skydiving instructor Donald Zarda. Zarda argued that he was terminated after telling a client he was gay, using Title VII. The trial court threw out the case, arguing that Title VII does not apply to discrimination based on sexual orientation. Subsequently, the U.S. Court of Appeals for the Second Circuit ruled en banc that Title VII applies to discrimination due to sexual orientation as a subset of sex discrimination. Their ruling concludes, in part, that sexual orientation is inherently associated with “sex”. [6] In Bostock v. Clayton County, Georgia, Gerald Bostock worked as a child welfare coordinator for Clayton County. Bostock joined a gay recreational softball league and began receiving criticism at work for both his participation in the league and for his own sexual identity. Shortly after, he was terminated for allegedly misusing program funds, which Bostock denies. Upon review, both the trial court and U.S. Court of Appeals for the Eleventh Circuit ruled that Title VII does not apply to discrimination due to sexual orientation. [7]
Given the similarities between Altitude Express and Bostock, these two cases were consolidated into the same oral argument for the Supreme Court. The different decisions from their respective appeals courts signify a point of contention between circuits which the Supreme Court could resolve. Through these two cases, proponents of LGBTQ+ workplace rights hope the Supreme Court will find that discrimination based on same-sex attraction falls under sex discrimination. The male employees were allegedly fired for their attraction to other men. If the employees had been female and attracted to men, proponents argue these employees would not have been fired. Counsel for the employers argue that this comparison is misleading: discrimination based on sexuality is not based on gender. Under discrimination based on sexuality, same-sex attracted male and female employees alike would be affected, while straight male and female employees would not be. However, this discrimination is still based on knowledge of the employee’s gender (and the gender of their significant other). Thus, based on the text of Title VII, discrimination based on sexuality should be prohibited.
The other case heard by the Court, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, questions whether Title VII prohibits workplace discrimination based on gender identity, rather than sexuality. In this case, Aimee Stephens, a funeral director, was terminated after informing her employer that she intended to transition from male to female and begin presenting as a woman. This included dressing in accordance with Harris Funeral Homes’ workplace attire policy, which is gender-specific. The district court ruled in favor of the funeral home, but the US Court of Appeals for the Sixth Circuit reversed the decision and found that Title VII protected Stephens from discrimination based on her transgender identity. [8]
With Harris, the Title VII question has two parts. First, does Title VII prohibit discrimination based on a transgender identity? Had Stephens been assigned female at birth, she would very likely have not have been terminated for presenting as a woman. Alternatively, Title VII prevents discrimination based on sex stereotypes, as understood by the Supreme Court in Price Waterhouse v. Hopkins (1988). Would discrimination based on a transgender identity fall under discrimination based on sex stereotypes, and thus be prohibited by Title VII?
In Price Waterhouse, Ann Hopkins failed to make partnership at the accounting firm Price Waterhouse and sued, alleging that she had been rejected due to her noncompliance with the firm’s expectations of a female employee in her dress and personality. The Court agreed that sex stereotyping is a type of sex discrimination. [9] In Harris, Harris Funeral Homes argued that Title VII’s use of “sex” should be interpreted as sex assigned at birth--in their words, “biological sex.” [10] Even if this interpretation is used, firing Stephens for not complying with the men’s dress policy is a decision based on Stephens’ sex assigned at birth. This clearly relies on sex stereotyping, as Stephens planned to adhere to the womens’ dress policy.
Though this issue of gender identity discrimination has not yet been brought before the Supreme Court, the issue of discrimination for a transgender identity in Harris is similar to discrimination faced by employees who do not identify as male or female. Such identities are often described under the umbrella of “non-binary” (though differing terms exist). If a non-binary individual were to be discriminated because of their gender identity, this would likely violate Title VII. Regardless of whether the term “sex” in Title VII is interpreted as gender identity or sex assigned at birth, such discrimination is based on gender identity or based on sex stereotyping (assuming that someone assigned a male or female sex at birth should comply with certain gender stereotypes). Non-binary identities are often understood to fall under the umbrella of transgender identities. Though Harris deals only with the issue of individuals who identify as male or female and were assigned a different sex at birth, non-binary identities should also be protected under Title VII’s prohibition of sex discrimination.
At the moment, appellate courts have varying interpretations of “sex” as it applies to sexualities and gender identities. Twenty-one states and three U.S. territories have banned anti-LGBTQ discrimination, so the Supreme Court’s rulings in these cases would affect LGBTQ protections in more than half of all states. [11] Workplace protections against discrimination based on sexual orientation and gender identity are inconsistent through the U.S., and two critical issues are now in front of the Supreme Court. Based on the Court’s past interpretations of Title VII, and on the inherent role of sex in discrimination based on sexual orientation and transgender identity, the Supreme Court should find that Title VII prohibits discrimination based on sexuality and discrimination based on transgender identities.
[1] Civil Rights Act of 1964, Title VII, 42 U.S. Code § 2000e.
[2] Ibid.
[3] “Sexual Orientation and Gender Identity Definitions,” Human Rights Campaign. Accessed Dec. 2, 2019.
[4] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
[5] Oncale v. Sundowner Offshore Services, Inc., 83 F.3d 118 (1998)
[6] Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. 2018)
[7] "Bostock v. Clayton County." Oyez. Accessed Dec. 2, 2019.
[8] "R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission." Oyez. Accessed Dec. 2, 2019.
[9] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
[10] Quoted in Julia Canzoneri, Robert Reese Oñate, and Nayanthika Ramakrishnan (Editor), “R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission,” LII Supreme Court Bulletin.
[11] Masha Gessen, “The Supreme Court Considers L.G.B.T. Rights, but Can’t Stop Talking About Bathrooms,” The New Yorker, Oct. 9, 2019.