June 15, 2020 was the biggest day for LGBT rights since the U.S. Supreme Court legalized same sex marriage nationwide five years ago. In a trio of cases, a 6-3 majority banned discrimination against LGBT employees nationwide. This came as a surprise to many court-watchers, as Justice Gorsuch and John Roberts joined the four liberal justices in finding that Title VII’s ban on sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity.
The Civil Rights Act of 1964 is the cornerstone of federal anti-discrimination legislation. It protects employees from discriminatory employment decisions influenced by race, color, religion, sex, and national origin. While this law generally isn’t that consequential in New Jersey, where the state anti-discrimination laws are more protective of employees than federal laws, Title VII is very important in other states. In South Carolina, for example, the state “anti-discrimination” statute is actually an employer protection law that promises not to be any more protective than what federal law requires. Thus, even in early 2020, non-religious employers in many states were free to fire workers because they were gay or transgender.
Such was the case of Don Zarda, the plaintiff in Zarda v. Altitude Express, one of the three lower-court cases consolidated for this Supreme Court decision. Zarda was an employee at a skydiving company who was fired when a customer complained that Zarda had revealed his sexual orientation to her before they jumped out of a plane together. The United States Supreme Court for the Second Circuit, the federal appeals court for New York, Vermont, and Connecticut, held that Title VII’s ban on sex discrimination encompassed discrimination on the basis of sexual orientation.
But the Court of Appeals for the Eleventh Circuit, which hears federal cases from Florida, Georgia, and Alabama, held the opposite in Bostock v. Clayton County, Georgia. In that case, the Plaintiff was fired for “conduct unbecoming a county employee” after an influential member of the community found out that Bosctock, an accomplished child welfare advocate, was participating in a gay recreational softball league and made disparaging comments about Bostock’s sexual orientation.
The third case, R.G. & G.R. Funeral Home v. Equal Opportunity Employment Commission presented the related issue of whether discrimination against transgender people counted as illegal sex discrimination. The Plaintiff Aimee Stephens was hired while presenting as a man. After seeking treatment for despair and loneliness, she and her doctors felt it would be best if Aimee transitioned to female. She informed her employers of this decision who told her that this would not work for them, and they fired her. The EEOC, the federal agency charged with prosecuting federal anti-discrimination law had already taken the position that Title VII protected employees from discrimination on the basis of gender identity. The Sixth Circuit, the federal appeals court for Michigan, Ohio, Kentucky, and Tennessee agreed with the EEOC, and the Funeral Home appealed to the U.S. Supreme Court.
The legal question over whether the word “sex” in Title VII protected sexual orientation and gender identity was a complex one. Legal analysis of such a question always begins with the meaning of the plain text. If the plain text itself cannot answer the question, legislative history and educated guesses about the intent of the original drafters are considered.
On one side of the argument were originalists who felt that the plain meaning of sex was confined to sex at birth. To the extent there was any ambiguity, they felt that in 1964, when Title VII was written, that its drafters did not intend “sex” to apply to gender identity and sexual orientation. That’s a plausible argument given that LGBT identity was still largely hidden from public consciousness in 1964.
But the Supreme Court also likes to interpret new questions of law in ways that accord with prior decisions. One important case was Price Waterhouse v. Hopkins, a 1989 case where it had been held that discrimination on the basis of sex stereotype violated Title VII. The Plaintiff in Price Waterhouse was a woman who believed she had been denied a partnership because she wasn’t perceived as ladylike. Indeed, evidence had shown that male employees felt uncomfortable around her because she did not behave the way a lady should.
The argument that Hopkins directs a finding that Title VII prohibits LGBT employment discrimination is compelling. If a man who dates men is fired because his choice of partner is not typically masculine, he is being subjected to a sex stereotype. Similarly, if a person born as a woman decides to dress and act the way that men do, any discrimination based on those choices is influenced by sex stereotype.
Supreme Court watchers were largely surprised by the support from conservative justices Gorsuch and Roberts decided to join the socially liberal point of view. Roberts, in particular, wrote the dissenting opinion in Obergefell v. Hodges, the case that held there is a fundamental right to same-sex marriage.
Here, the conservative justices took the position that plain language other than the term “sex” as well as Supreme Court precedent mattered. Specifically, the plain language of Title VII prohibits discrimination “because of” sex. They interpreted “because of” to mean that if sex takes any part in the decision to fire someone, it violates Title VII. They pointed to three such precedential cases that proved this was already the law of the Court. In Phillips v. Martin Marietta Corp., an employer was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.
Essentially, the Justices held, if you are going to discriminate against someone on the basis of gender identity or sexual orientation, you are taking the person’s sex into account, and Title VII does not permit this.
If you have been the victim of employment discrimination on the basis sexual orientation or gender identity in or near Somerville, New Jersey, you should speak to a local attorney. New Jersey provides wide anti-discrimination protections for employees, and there are many options for pursuing justice. Michael Poreda regularly represents LGBT victims of employment discrimination.