Back In the Saddle and Ready To Ride: Will SCOTUS Buck Social Trends in the LGBT Rights Rodeo?

October 9, 2019 | By Kevin D. Hyer

October 7, 2019 marked the beginning of a new U.S. Supreme Court term.  One significant employment law matter the Court is expected to rule on has to do with lesbian, gay, bisexual and transgender (“LGBT”) rights.  In a trio of cases that have come up through the Circuit Courts, the Court is set to determine whether the federal law prohibiting employment discrimination “on the basis of sex,” applies to LGBT employees under the Court’s landmark 1989 sex stereotyping decision, Price Waterhouse v. Hopkins. ¹  On October 8, 2019, the Justices heard argument on the three pending cases.

The Backdrop

Much has changed in the 30 years since the Court decided Price Waterhouse and established that discrimination based on sex and gender stereotypes was prohibited by Title VII of the Civil Rights Act of 1964.  In that time, the LGBT community has found significantly more support, especially with respect to their members who identify as cisgender (i.e., not transgender).  Since the Court’s June 2015 decision in Obergefell v. Hodges, same sex marriage has been the law of the land.²

The ban against LGB Americans serving openly in the armed forces (commonly known as “Don’t Ask, Don’t Tell”) fell under former President Obama, and the Trump administration has not attempted to reinstate the policy as it pertains to cisgender service members.  The workplace remains one of the last frontiers where LGBT citizens are, depending on one’s perspective and jurisdiction, treated unequally under the law. 

To date, 21 states including DC, Guam and Puerto Rico, as well as many municipalities, have enacted laws prohibiting LGBT discrimination.  The reliably pro-employee U.S. Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with enforcing workplace civil rights laws, began accepting gender identity claims as a subset of sex discrimination in 2012 and sexual orientation claims in 2015.  However, there is no federal workplace law that protects this demographic from employment discrimination across all 50 states.   Now, the Court will determine if Title VII does, and in the process will finally resolve a split amongst the lower courts on this issue. 

The Cases

The three cases currently before the court are: 

Bostock and Zarda, both of which involve men who claim that they were fired from their jobs because they were gay, were consolidated and argued together on the morning of October 8th.  The Zarda case was profiled by HR Legalist here.  The Harris Funeral Homes case, which involves a transgender woman terminated after she disclosed her intention to transition, was argued separately later in the morning.  Harris was profiled by HR Legalist here.

The Competing Arguments 

  • The argument for finding that Title VII protects the LGBT community was stated succinctly by the Second Circuit in Zarda:  “In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.  We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”
  • The basic argument against finding that Title VII protects the LGBT community flows from the idea that sexual orientation reflects a behavior, not one’s sex, and that gender identity is a subjective perception wholly separate from one’s sex, which is entirely objective and biologically based.  
  • A related, but potentially significant additional argument against LGBT protections under Title VII is the fact that Congress has been presented with multiple opportunities over the past several decades, but has failed to do so – opening the door for the justices to assert that they should not “legislate from the bench.” 

What’s Next?

A pro-employee ruling would be a watershed moment for the LGBT rights movement, arguably even more significant than Obergefell.  It would almost certainly increase the number of discrimination claims brought under Title VII, but would also align with recent public sentiment in favor of LGBT rights.  A more conservative opinion, seemingly in line with the political ideology of the Court’s majority, would overturn the Circuit Court decisions expanding LGBT workplace rights, and restrict such claims for the foreseeable future in jurisdictions that have not passed legislation at the state or local levels.  While this may be viewed as a win for corporate interests facing discrimination claims, the backlash could result in a stronger push for state and local protections, which has been a tried and true approach for LGBT advocates in the past.  

Predicting the Court’s decision based on the back-and-forth of oral argument is a tricky proposition.  SCOTUSblog’s recent argument analysis describes the justices as “divided” on the core issues, as evidenced by pointed questions to both sides.  Many commentators believe Neil Gorsuch’s vote will decide the matter, presuming that the other justices vote along established ideological lines.  During oral arguments, at times Gorsuch appeared visibly sympathetic to the pro-LGBT cause, but then also spoke to his anxieties about “massive social upheaval” were Title VII to be expanded.  

HR Legalist will continue to track these cases and will update readers when a decision is reached.  Until then, employers—and multi-state employers in particular—remain subject to a patchwork of different state and local laws in this area.  In any U.S. jurisdiction, employees who feel that they have been discriminated against based on sexual orientation or gender identity can approach the EEOC, which has already shown a willingness to pursue such cases.  As such, regardless of how the Court ultimately rules, employers should exercise caution when implementing policies and making decisions that impact LGBT applicants and employees.  


¹ 490 U.S. 228 (1989)

² 135 S. Ct. 2584 (2015).  

³ 884 F.3d 560 (6th Cir. 2018)

4 139 S. Ct. 2049 (2019)

5 883 F.3d 100 (2nd Cir. 2018)

About the Authors

Kevin D. Hyer

Associate

Kevin concentrates his diverse labor and employment practice on minimizing employment liability and avoiding third-party intervention. Kevin’s prior experience in representing a powerful union in an in-house capacity gives him an intimate...

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