The law of LGBT/Sexual Orientation/Gender Identity discrimination is deeply unsettled in 2019. What is meant by the acronym “LGBT”? LGBT refers to the categories of Lesbian, Gay, Bisexual, and Transgender. The terms “Lesbian” and “Gay” and “Bisexual” refer to sexual orientation. On the other hand, the term “Transgender” describes gender identity rather than sexual orientation.
The Equal Employment Opportunity Commission (“EEOC”) identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a top Commission enforcement priority in its 2017-2021 Strategic Enforcement Plan (EEOC Strategic Enforcement Plan FY 2017-2021): “[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex.”
The issues of sexual orientation and gender identity discrimination have created a variety of results in the Federal Circuit Courts of Appeal, and a number of cases have sought Supreme Court review. In April 2019, and after no fewer than eleven consecutive conference relists, the Supreme Court of the United States (“SCOTUS”) agreed to hear three landmark cases interpreting whether the scope of Title VII sex discrimination encompasses discrimination based on sexual orientation and gender identity. The cases, Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes v. EEOC examine whether adverse employment actions allegedly taken on the basis of an employee’s sexual orientation and/or gender identity violate Title VII of the Civil Rights Act of 1964’s bar on discrimination in employment “on the basis of sex.”
In Altitude Express v. Zarda, (17-1623) employee skydiving instructor Donald Zarda claimed that he was terminated after revealing to a skydiving client that he was gay. The trial court granted summary judgment for the employer Altitude Express, which was affirmed on appeal to the Second Circuit. Zarda petitioned the Second Circuit for rehearing en banc, which was granted with instruction to the parties to brief only one issue: “Does Title VII of the Civil Rights Act of 1964 prohibit sexual orientation discrimination through its prohibition of discrimination ‘because of…sex’?” The full Second Circuit determined that Title VII does prohibit sexual orientation discrimination, vacated the District Court judgment and remanded for further proceeding, overturning long-standing Second Circuit precedent. The employer has appealed to the Supreme Court, seeking a holding that Title VII does not prohibit discrimination on the basis of sexual orientation. It has been consolidated for argument with another sexual orientation case, Bostock v. Clayton County, Georgia.
In Bostock v. Clayton County, Georgia, (17-1618) the petitioner, a child welfare services coordinator for Clayton County, Georgia, claims that after learning that he was gay, his employer falsely accused him of mismanagement of public funds and fired him, when the real reason for his firing was his sexual orientation. The District Court dismissed his case on the grounds that Title VII does not support a cause of action for sexual orientation discrimination, which was upheld on appeal to the Eleventh Circuit. Bostock has appealed to the Supreme Court seeking a holding that Title VII’s prohibition on discrimination on the basis of sex encompasses sexual orientation.
The third of these blockbuster cases, R.G. & G.R. Harris Funeral Homes v. EEOC arises from the desire of a male funeral director to dress and present as a woman at work as part of a transition from male to female, despite the employer’s sex-specific dress code. The employer refused and terminated the employee’s employment, claiming acquiescence to the employee’s requests would violate the company dress code, disrupt the grieving process of client families, and violate the employer’s sincerely held religious beliefs. The EEOC filed suit against the employer claiming that the employer discriminated against the employee based on the employee’s transgender status and gender-based preferences, expectations, or stereotypes. On motion to dismiss, the trial court granted the employer’s motion with respect to transgender status as a protected class, but allowed the case to go forward on the gender stereotyping claim. On later Cross-Motions for Summary Judgment, the court reiterated that there was no basis for discrimination on transgender status, but found that the EEOC had raised a viable sex-stereotyping claim—although ultimately holding for the employer on the grounds that the Religious Freedom Restoration Act (“RFRA”) prohibits the EEOC from applying “Title VII, and the body of sex-stereotyping case law that has developed under it, under the facts and circumstances of this unique case” since the employer’s sincerely held religious beliefs would prevent him from allowing a male funeral director from presenting himself to grieving families as female. On appeal to the Sixth Circuit, the court held that Title VII protected the employee’s “transitioning status” from male to female, and further found that RFRA was not a defense to the employer’s actions. The employer petitioned SCOTUS for writ of certiorari which was granted over objections of the government (for EEOC) and the intervening employee on her own behalf. It is noteworthy that Amicus briefs including Jewish Coalition for Religious Liberty, Foundation for Moral Law, State of Nebraska, et al., and Public Advocate of the United States et al. were accepted by the court. The Petition for Certiorari was ultimately granted but limited to the following 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.” Briefs on the merits of this question are scheduled.
Stay tuned for more during the 2019-2020 term of the Supreme Court-beginning in October 2019. If you need help formulating policies and best practices for your workplace pending the Supreme Court’s decisions on these matters, contact the employment lawyers at Drewry Simmons Vornehm, LLP.