Executive Summary: The next session of the Supreme Court of the United States (SCOTUS) is just around the corner. On October 8, 2019, SCOTUS will hear oral argument on three closely watched cases, Bostock v. Clayton Co., Georgia, Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Home v. EEOC. All three cases address the question of whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on “sex,” among other things, protects LGBTQ rights in the employment setting. Zarda and Bostock, which have been consolidated by SCOTUS, will grapple with whether Title VII protections extend to discrimination based on sexual orientation, while R.G. & G.R. Harris Funeral Home will look at whether those protections encompass gender identity and transgender status.
In anticipation of oral argument next month, several amicus curiae, or “friend of the court” briefs have been filed in support of both sides.
On the one hand, the EEOC and other LGBTQ advocacy groups, as well as over 200 employers nationwide, filed briefs in Zarda and Harris Funeral Home taking the position that Title VII protects workers from being discriminated against based on their sexual orientation or gender identity/transgender status. The argument that the term “sex” encompasses gender identity and sex-stereotypes was first espoused by the U.S. Supreme Court 30 years ago in Price Waterhouse v. Hopkins and its progeny. The EEOC now argues that protecting LGBTQ rights under this theory is a natural extension of already established case law. The employers who filed amicus briefs also argue that these protections can help improve business operations by providing healthier work places and improve their bottom lines by allowing them to attract and retain talented employees, which in turn improves business efficiency and profitability. Another 80 philosophers filed their own brief, posing the idea that “sex” is inextricably intertwined with same-sex attraction and gender nonconformity, and cannot be applied to an individual without reference to that person’s sex.
On the other hand, the U.S. Department of Justice (DOJ) and many conservative advocacy groups have taken the position that the plain language of Title VII protects only biological sex, and does not provide protections against discrimination based on sexual orientation or gender identity. It is rare to see two government agencies taking such differing positions on the same issue, and this divergence of opinions between the EEOC and DOJ is sure to provide an interesting showdown before SCOTUS during oral argument.
More specifically, the DOJ argues that in drafting Title VII and including the category “sex,” Congress’s intent was only to protect the rights of women in the workplace and ensure women had the same opportunities as men. Therefore, the agency argues, the intent was to protect biological sex and nothing else. “Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex,” the Justice Department argues, “but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect.” This position is also taken by several conservative groups, who argue that Supreme Court precedent recognizes the biological differences between men and woman, and that adding gender-identity and sexual orientation to the list of characteristics protected by Title VII would alter the purpose of the law. It is their position that if sexual orientation and gender identity are to be protected by Title VII, Congress must act and amend the statute to include them as protected classes. Absent Congressional action, they argue, Title VII’s prohibition of discrimination “because of sex” remains only a protection for biological sex. Some religious and free speech advocacy groups also filed amicus briefs arguing the impact of this decision on religious groups, and posit that it would be a violation of their free speech rights to require an employer to use a specific pronoun in reference to its employees.
In summary, through the briefs of the parties and the many additional amicus briefs filed with SCOTUS, the table has been set for these impactful and intriguing cases. Oral argument is sure to provide additional insight into this thought-provoking discussion and the possible positions of the Justices.
It also is worth noting that these cases are being heard against the backdrop of the Equality Act, which would amend existing federal civil rights laws to explicitly prohibit anti-LGBTQ discrimination (presently 21 states and the District of Columbia prohibit discrimination in private employment based on sexual orientation and gender identity, and one additional state prohibits discrimination in private employment based on sexual orientation only). The Equality Act was passed by the House of Representatives, and is presently before the Republican-held Senate.
We will continue to provide updates regarding oral arguments, other case developments, and, ultimately, the Court’s decisions on these cases. As we await these decisions, employers should continue to follow the laws in the federal jurisdictions, states and cities in which they operate.
If you have any questions, please contact the authors of this Legal Alert, Johanna G. Zelman, Office Managing Partner in FordHarrison's Hartford, CT, office, jzelman@fordharrison.com, Nancy Holt, partner in FordHarrison’s Washington D.C. office, nholt@fordharrison.com, and Jenna Goldman, associate in the Hartford office, jgoldman@fordharrison.com. You may also contact the FordHarrison attorney with whom you usually work.