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On The Basis Of "Sex": U.S. Supreme Court To Decide Whether Federal Law Protects LGBT Workers

On April 22, 2019, the U.S. Supreme Court announced that it would consider whether the chief federal employment discrimination law provides protection for workers on the basis of sexual orientation and gender identity. Specifically, the Court accepted three cases addressing whether the prohibition in Title VII of the Civil Rights Act of 1964 of employment discrimination “because of… sex” encompasses discrimination on the basis of sexual orientation or transgender status.

While some states, including Massachusetts, have expressly forbidden employment discrimination based on sexual orientation or gender identity, to date it has been unclear whether federal law provides the same protections. With some recent notable exceptions, most federal courts confronting the question have concluded that Title VII does not prohibit discrimination on the basis of such characteristics. By contrast, in 2015, the Equal Employment Opportunity Commission (“EEOC”) adopted the position that Title VII does apply to sexual orientation and gender identity discrimination.

A trio of conflicting federal appellate court decisions have now teed up the question for the Supreme Court’s consideration.

Circuit Courts Split On Sexual Orientation

Two of the cases accepted by the Supreme Court involve employees alleging discrimination on the basis of sexual orientation. In considering whether the employees had cognizable claims under Title VII, the U.S. Courts of Appeals for the Second and Eleventh Circuits reached opposite conclusions.

Second Circuit.

In an en banc decision, Zarda v. Altitude Express, Inc., the Second Circuit concluded that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex,’” expressly overruling previous decisions to the contrary. In reaching its decision, the Second Circuit panel cited recent developments in federal case law, as well as the EEOC’s position that “sexual orientation is inherently a ‘sex-based consideration.’”

In explaining its departure from prior precedent, the Second Circuit held that sexual orientation discrimination is a subset of sex discrimination for at least three distinct reasons. First, it concluded that sexual orientation is a function of sex because one’s sexual orientation is dependent on one’s sex, and because when an employee is subjected to discrimination on the basis of his or her being attracted to members of the same sex, that employee would not face such discrimination if he or she were a member of the opposite sex. Accordingly, the Second Circuit concluded, sexual orientation discrimination is, by definition, sex discrimination.

Second, the Zarda court concluded that sexual orientation discrimination is a form of discrimination based on gender stereotypes. Citing Supreme Court precedents from 1978 and 1989 prohibiting employment decisions “predicated on mere ‘stereotyped’ impressions about the characteristics of males or females,” the Second Circuit stated that where an employer acts on the basis of a belief that men should not be attracted to other men, but the employer takes no action against women who are attracted to men, the employer is impermissibly acting on the basis of gender.

Finally, the Zarda opinion noted that sexual orientation discrimination may also be viewed through the lens of associational discrimination. Citing decisions in which the Second Circuit and other federal appellate courts have recognized claims of race discrimination based on an employer’s disapproval of interracial relationships, the Zarda court concluded that such associational discrimination is prohibited with respect to all protected classes under Title VII. Accordingly, the court held, discriminating against an employee because the employer disapproves of the employee’s same-sex relationship is prohibited, just as it is unlawful to discriminate against an employee for having an interracial relationship.

Eleventh Circuit.

In contrast to the Second Circuit’s decision, the Eleventh Circuit held, in Bostock v. Clayton County Board of Commissioners, that Title VII does not permit claims of employment discrimination based on sexual orientation. The Bostock court primarily relied on a 1979 decision within the circuit holding that “[d]ischarge for homosexuality is not prohibited by Title VII,” as well as a more recent Eleventh Circuit decision handed down in 2017, Evans v. Georgia Regional Hospital. In Evans, the Eleventh Circuit specifically rejected the argument that Supreme Court precedents recognizing Title VII claims based on gender stereotypes or non-conformity required courts to recognize claims based on sexual orientation. Notably, the Second Circuit examined the same Supreme Court cases in Zarda and reached the opposite conclusion.

Even within the Second and Eleventh Circuits, this issue remains hotly contested. Indeed, appellate judges in both jurisdictions have expressed disagreement with the holdings described above. Three circuit judges dissented from the Second Circuit’s opinion in Zarda on the basis that the legislative history of Title VII does not support such a broad interpretation of the word “sex” as to encompass sexual orientation, and that it is beyond the authority of the court to expand the statute’s protections to classes not intended by Congress. The dissenting judges also noted unsuccessful legislative efforts to add express protections for sexual orientation to Title VII. Such amendments would be unnecessary if Title VII already protected sexual orientation, and, in the view of the dissenting judges, these efforts failed not because Congress believed the proposed amendments would be redundant, but because there was not a sufficient political consensus to expand Title VII in this manner.

Conversely, one circuit judge dissented from the Eleventh Circuit’s panel opinion in Evans (which provided the basis for the subsequent decision in Bostock), arguing that Title VII does encompass sexual orientation discrimination. Citing Supreme Court precedents recognizing Title VII claims based on gender stereotypes, the dissenting judge argued, “[W]hen a woman alleges… that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be – specifically, that women should be sexually attracted to men only…. That is discrimination ‘because of… sex.’”

Does Title VII Cover Transgender Individuals?

In addition to Zarda and Bostock, the Supreme Court accepted a third case concerning LGBT rights under Title VII, EEOC v. R.G. & G.R. Harris Funeral Homes Inc. In Harris Funeral Homes, the U.S. Court of Appeals for the Sixth Circuit addressed a claim by an employee that she was unlawfully discriminated against on the basis of her status as transgender and transitioning from male to female. The Sixth Circuit held that the employee was unlawfully terminated based on her failure to conform to sex stereotypes, and it further held that she should have been allowed to pursue a separate claim for discrimination on the basis of her transgender and transitioning status, since such discrimination “is necessarily discrimination on the basis of sex.”

In reaching its conclusion, the Sixth Circuit considered whether, under the same facts, the employee would have faced discrimination if she had been born a different biological sex. In other words, if the employee had been born female and sought to wear women’s clothing at work, she would not have faced discrimination, and therefore the employee was impermissibly discriminated against on the basis of sex.

In addition, the court concluded that discrimination “because of… sex” necessarily includes discrimination due to a change in sex, citing a federal district court decision from Washington, D.C. that upheld a claim of religious discrimination where an employee was fired for changing religions, even where the employer did not harbor any animus toward either religion.

Executive Branch Disagreement

These recent cases have cast light on the current disagreement within the executive branch as to whether sexual orientation discrimination violates Title VII. As noted above, in 2015 the EEOC abandoned its previous position that sexual orientation was “outside the purview of Title VII,” and the agency now maintains that discrimination on the basis of sexual orientation is prohibited. Consistent with that position, the EEOC submitted briefs in support of the employees alleging sexual orientation discrimination in Evans and Zarda. In Zarda, however, the U.S. Department of Justice submitted arguments in support of the employer’s position and in opposition to the aggrieved employee and the EEOC.

In Harris Funeral Homes, the executive branch was once again divided, this time with respect to transgender protection. The EEOC, as a party to the case seeking to enforce the employee’s rights under Title VII, argued in support of the employee and a broad reading of Title VII to include transgender and transitioning status. In connection with the employer’s certiorari petition to the Supreme Court, the U.S. Solicitor General sided with the employer and argued that Title VII does not cover gender identity, citing an October 2017 memorandum from the Attorney General.

Implications For Employers

The Supreme Court has granted one hour for oral arguments on Zarda, Bostock, and Harris Funeral Homes. After the Supreme Court hears those arguments and issues its decision, employers should have greater clarity as to the scope of Title VII’s prohibition on sex discrimination.

In the meantime, employers should ensure that their equal employment opportunity policies and practices encompass all classes that are protected not only under Title VII but also under applicable state and local laws. In some jurisdictions, including Massachusetts, employment discrimination on the basis of sexual orientation or gender identity is expressly prohibited. State and local laws often cover other characteristics to which Title VII does not apply, so it is important for employers to make certain that they are fully aware of their non-discrimination obligations.