Many Americans assume it is against the law to fire someone over their sexual orientation. But, technically, Congress has never outlawed that. Instead, federal agencies have relied on a broad interpretation of what laws barring gender-based discrimination cover.
The logic is sound: If a man is fired for being in a relationship with another man, then he is being illegally singled out for not acting the way his boss assumes men are supposed to act.
But not all judges agree with that interpretation. Appeals courts have divided over the issue. Some have approved the position that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, among other reasons, applies to sexual orientation. Rejecting it, other courts have held that it is up to Congress to specifically include sexual orientation among the prohibitions, and until it does, LGBTQ employees are not protected.
The argument will now go before the Supreme Court, which has a 5-4 conservative majority that has not faced any major cases involving LGBT rights so far. The Court agreed last month to consider appeals in three cases involving gay and transgender people.
Inconsistency in interpretation
Title VII is the primary federal law when it comes to prohibiting discrimination in the workplace. On its face, Title VII prohibits discrimination at work based on national origin, race, color, religion and sex.
In the past few years, it’s this last protected class – sex – that has resulted in a number of disagreements and inconsistencies among the courts and the executive branch of government over whether it includes discrimination based on a worker’s sexual orientation and/or gender identity.
There’s even a disagreement inside the executive branch, with the White House arguing that a worker’s sexual orientation and gender identity are not protected classes even though the Equal Employment Opportunity Commission’s (EEOC) own website says otherwise.
There are also inconsistencies among the states, with some states creating protected classes that include sexual orientation or gender identity while other states do not have such protections in place. Some cities have also adopted protection for sexual orientation.
These inconsistent interpretations of Title VII may be settled in the Court’s next term, which begins in October.
The cases to be decided
Here is a brief description of each of the three cases the court has accepted.
Case 1: Fired for being transgender
R. G. and G. R. Harris Funeral Homes v. EEOC, involves Aimee Stephens. She worked as a funeral director but was fired when she informed her employer, the owner of the funeral home where she worked, that she was planning on transitioning from male to female.
After she filed a complaint with the EEOC, it brought suit on Stephens’ behalf alleging her firing was unlawful sex discrimination under Title VII. The District Court ruled in favor of the funeral home, but the Court of Appeals for the Sixth Circuit reversed it, holding that Title VII also prohibited employment discrimination on the basis of a worker’s gender identity.
Case 2: Georgia government worker
In Bostock v. Clayton County, Gerald Lynn Bostock, who is gay, worked as a child welfare services coordinator for the county of Clayton in Georgia. However, after learning he participated in a LGBT softball league, the county fired him.
Bostock claims he was fired because of his sexual orientation and brought suit alleging unlawful employment discrimination under Title VII.
The District Court dismissed the case and the Court of Appeals for the Eleventh Circuit affirmed, citing prior court precedent that held Title VII’s prohibition on sex discrimination did not apply to discrimination based on homosexuality.
Case 3: Gay skydiving instructor
Donald Zarda worked for Altitude Express as a skydiving instructor. As a part of his job duties, Zarda often had to make tandem skydives, where he would be closely attached to his inexperienced skydiving client. In an attempt to reassure female clients, Zarda would often tell them he was gay.
In 2010, a female client who had been attached to Zarda complained that he touched her inappropriately and used his sexual orientation as an excuse for his conduct. The female client told her boyfriend, who then complained to Zarda’s boss; Zarda was fired soon after.
Zarda alleges his firing was improper because it was based on the fact that he’s gay and that this constituted a form of illegal discrimination based on gender stereotypes. The District Court ruled against Zarda, acknowledging that even though discrimination based on gender stereotyping was illegal under Title VII, a claim of gender stereotype discrimination could not be based on sexual orientation.
The Court of Appeals for the Second Circuit reversed the District Court and concluded that discrimination based on sexual orientation was a subset of sex discrimination under Title VII.
The case is Altitude Express Inc. v. Zarda.
How will the Court rule?
The general trend of court decisions is to provide additional protections for members of the LGBT community. And from a logical point a view, it’s hard to argue that discriminating against someone because of their sexual orientation or gender has no relation to their sex.
On the other hand, when Title VII was written, its drafters probably did not intend for the word “sex” to include protections against discrimination based on gender identity or sexual orientation. However, the Supreme Court has already implicitly rejected this argument in Oncale v. Sundowner Offshore Services Inc.
In this case, a male worker was subject to sexual harassment from other male workers. The Supreme Court unanimously held that even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” it was still prohibited by Title VII.
But with the addition of Brett Kavanaugh, who replaced Justice Anthony Kennedy, anything is possible. It’s important to remember that Justice Kennedy was the fifth and deciding vote in Obergefell v. Hodges, which effectively legalized same-sex marriage in all 50 states.
Now What?
Hopefully, the Supreme Court will follow the recent trend of states, courts and the EEOC in deciding that Title VII protects workers against discrimination on the basis of gender identity and sexual orientation. Even if it doesn’t decide this, all is not lost. Congress can amend Title VII to explicitly include sexual orientation and gender identity protections.
In the meantime, employers should review their compliance with state and city laws on employment discrimination, as well as with Title VII.