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Clarifying Sexual Orientation & Gender Identity Protections Under Title VII

55 years ago this summer, the Civil Rights Act of 1964 (CRA) became law. The CRA’s importance in modern civil rights law cannot be overstated: it bans discrimination in employment, among other aspects of public life, on the basis of race, color, religion, sex, or national origin. Title VII of the CRA forbids discrimination in any phase of employment, the creation of a hostile work environment, and retaliation against employees who exercise their Title VII rights. You may note, however, that the list of prohibited bases of discrimination – race, color, religion, sex, national origin – omits sexual orientation and gender identity.

Sexual Orientation and Gender Identity Rights Have Expanded Nationwide

In recent years, the Supreme Court and states around the country have expanded the civil rights of gay, lesbian, bisexual, and transgender (LGBT) citizens. Only in 2015, via the Supreme Court’s ruling in Obergefell v. Hodges, did same-sex couples’ constitutional right to marry gain nationwide protection. Since Obergefell, the United States has seen its first national monument dedicated to LGBT rights; the election of LGBT state governors; 18 state-law bans on “conversion therapy” for LGBT youth; and a gender-neutral pronoun option for District of Columbia driver’s licenses. In fact, 18% of American adults, and 32% of American adults under the age of 30, personally know someone who uses a gender-neutral pronoun.

LGBT Rights Under Title VII Still Unclear and Regionally Defined

Despite the above strides, LGBT individuals (as well as other individuals whose gender identity is non-binary, meaning neither only “male” nor only “female”) lack the fundamental protections Title VII affords. While the Seventh Circuit Court of Appeals, which hears Wisconsin cases, ruled in 2017 that Title VII prohibits employment discrimination against LGBT employees, and 21 states and the District of Columbia have laws prohibiting sexual orientation and gender identity discrimination, LGBT individuals in much of the country are left without such protections. The Supreme Court appears poised to step into that breach in October 2019, when it will hear three cases revolving around whether Title VII also prohibits discrimination on the basis of sexual orientation or gender identity. The Hawks Quindel, S.C. employment team, and civil libertarians across the country, await the outcomes of the following three cases.

Case #1: Altitude Express Inc. v. Zarda

This case, set for argument on October 8, 2019, concerns Donald Zarda, a gay man who worked as a skydiving instructor. This work sometimes required that he be strapped to clients for jumps; Mr. Zarda would tell some female clients that he was gay to help them feel more comfortable with being strapped to him. Altitude Express, a New York skydiving outfit, fired him. Mr. Zarda sued Altitude Express alleging that it discriminated against him because of his sexual orientation and his gender.
After Mr. Zarda’s death in 2014, his estate continued his lawsuit. In February 2018, the U.S. Court of Appeals for the Second Circuit ruled that Mr. Zarda’s employer had unlawfully discriminated against him when it fired him for being gay. Further, the Second Circuit held that Title VII prohibits discrimination on the basis of sexual orientation. To the Second Circuit, “sexual orientation” falls within the Title VII protected category of “sex.” Altitude Express appealed to the Supreme Court, which elected to consolidate argument in Zarda with argument in Bostock v. Clayton County, Georgia.

Case #2: Bostock v. Clayton County, Georgia

This companion case to Zarda stems from the termination of Gerald Bostock’s employment as the Child Welfare Services Coordinator in Clayton County, Georgia. Mr. Bostock worked in that capacity for ten years, during which time he received positive performance reviews. Shortly after Clayton County learned that Mr. Bostock was gay, it accused him of financial mismanagement and fired him. Mr. Bostock sued, arguing that Clayton County had made a false accusation to cover up the real reason for his termination: his sexual orientation.
In federal district court, Clayton County won. The court held that Title VII does not prohibit discrimination on the basis of sexual orientation. On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the district court’s ruling. Mr. Bostock asked the Supreme Court to review the 11th Circuit’s ruling, and the Court will do so in tandem with its review of the 2nd Circuit’s ruling in Zarda. These consolidated cases highlight a “circuit split” between Courts of Appeals that interpret Title VII to include protection from discrimination on the basis of sexual orientation and gender identity, and those that do not.

Case #3: R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (EEOC)

This case, also set for argument on October 8, 2019, centers on the story of Aimee Stephens. Ms. Stephens, whose sex assignment at birth was male, worked at a Michigan funeral home for six years under her birth name, Anthony. In 2013, she informed her employer of her intention to transition – to align her gender expression with her gender identity, rather than the sex she was assigned at birth. Ms. Stephens was subsequently fired, and filed a discrimination charge with the EEOC in 2014. When the EEOC took her case to court, the federal district court ruled that Title VII did not protect Ms. Stephens against employment discrimination on the basis of her transgender status.
The EEOC appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, which held in March 2018 that the funeral home had unlawfully discriminated against Ms. Stephens under Title VII. The funeral home appealed to the Supreme Court, arguing that “sex discrimination” does not include discrimination based on sexual orientation or gender identity. That interpretation would mean that Title VII does not protect transgender Americans. Stephens, for her part, argues that Title VII’s protections do apply to her, because the decision to fire a person based on their transgender status hinges on the difference between the person’s assigned sex and the person’s gender identity. Had her assigned sex at birth been female, Stephens asserts, the funeral home would not have fired her in 2013.
The three October 8, 2019 cases discussed above could become some of the most impactful of the year. Clearly, the U.S. Circuit Courts of Appeal – and the state-specific courts comprising them – are divided on the question of whether Title VII bans discrimination on the basis of sexual orientation and gender identity. The Supreme Court has historically stepped in to resolve important issues like the expansion of civil rights, and court-watchers expect it to do so again in October.

If you feel that your employer, or the employer of someone close to you, has discriminated based on sexual orientation, gender identity, or another basis, please contact the Hawks Quindel, S.C. team of lawyers.