September 1, 2019
The LGBTQ community is at the U.S. Supreme Court again. This time it is about the basic principle of nondiscrimination at work—that you shouldn’t be denied a job, mistreated on the job, or lose a job simply because of who you are. Currently, sex discrimination protections in federal law cover many LGBTQ workers, but fewer than ½ of U.S. states have anti-discrimination laws that explicitly protect LGBTQ people. The possibility of the Supreme Court now inventing an exclusion of LGBTQ people from our federal workplace nondiscrimination law is of concern to us all and could have impacts reaching beyond the workplace into healthcare, housing, and education.
How did we get here? We got here because LGBTQ workers continue to be dismissed from their jobs, no matter their qualifications and performance, just because of who they are. No one is immune from job discrimination, and some people are even more vulnerable to it, including many people of color, immigrants, and those in lower-wage jobs. Discrimination takes a harsh toll on building financial stability for the worker and their family, and on the dignity of those who are judged unworthy because they are LGBTQ.
The three cases before the Court demonstrate the ongoing problem. In two of them, Zarda v. Altitude Express and Bostock v. Clayton County Georgia, employees were fired for being gay men. The Second Circuit Court of Appeals ruled in favor of the employee, Don Zarda who was fired after he came out to a skydiving client, but the Eleventh Circuit Court of Appeals ruled for the employer, Clayton County and against Gerald Bostock, in the second. Bostock, a well-regarded child welfare services coordinator for the courts, ran into trouble when he joined a gay softball league, and was fired for “conduct unbecoming” a county employee. In the third case, Aimee Stephens v. Harris Funeral Home, a transgender woman was fired after she came out to her employer. The Sixth Circuit Court of Appeals ruled in favor of Stephens, the employee.
For years, the LGBTQ legal movement has used Title VII of the federal Civil Rights Act to combat this discrimination, and argued that discrimination against LGBTQ people is discrimination “because of an individual’s sex.” In other words, we have argued and increasingly won the argument that we are covered by our national civil rights laws. (That federal law also prohibits discrimination because of an individual’s race, color, national origin or religion and other laws extend protections to persons with disabilities).
The Trump Administration’s Department of Justice (DOJ) has weighed in against the employees and against a simple and robust reading of our civil rights laws. They support the employers in the cases before the Court, and argue that LGBTQ people should be excluded from Title VII’s protections because of anti-LGBTQ discrimination.
GLAD, in conjunction with the ACLU (counsel in two of the three cases) and other LGBTQ groups, helped devise and implement the strategy for friend of the court briefs in these cases at the Supreme Court. We rely on the gold standards for interpreting laws: Title VII’s text and the Court’s longstanding interpretations of it show that anti-LGBTQ discrimination is “discrimination because of an individual’s sex.” There is no reason for the Supreme Court to rewrite the law and take LGBTQ people out of it.
Along with the briefs on behalf of the employees, four friend of the court briefs—two of law professors, one of former Supreme Court attorneys for the U.S. government, and one of Republicans and conservatives who served in Republican administrations—exactingly develop the arguments based on the literal words of the law.
Consider that discrimination against LGBTQ persons cannot conceptually be defined or understood without reference to sex, such that actions taken “because of” one’s LGBTQ status necessarily take account of sex. Zarda and Bostock were fired because of their sexual orientation, i.e., because they were men who dated men. And Aimee Stephens lost her job at a funeral home because her employer “categorized her as a man.” The reason for the discriminatory treatment in each case was the “sex” of the individual employee. Zarda and Bostock would not have been fired if they had been women who dated men, nor would Stephens if she had a female sex assigned at birth. The Supreme Court’s earliest Title VII case, Phillips v. Martin Marietta Corporation, established a simple test for discrimination— “treatment of a person that but for the person’s sex would be different.” And that applies to all three employees before the Court.
In addition, since the 1989 Price Waterhouse ruling on behalf of a woman denied partner at an accounting firm because she was “not feminine enough,” it has been the law that discrimination based on sex stereotyping is sex discrimination. As the Supreme Court said in that ruling, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” The Court’s confirmation that gender and social roles are encompassed by sex discrimination necessarily speaks to discrimination against LGBTQ people as well. For transgender people, not only is there a stereotype about how men and women should identify, appear and behave, there are also 1.55 million people assigned a particular sex at birth who do not identify, appear or behave consistent with that assigned sex. In Stephens, the funeral home director said, “a male should look like a man;” the lower court rightly rejected this as justification for firing Aimee Stephens. And in Zarda, the lower court directly addressed stereotypes about sexual orientation as sex discrimination, saying, “an employer who acts on the basis of a belief that a woman cannot be [attracted to other women] or that that she must not be, has acted on the basis of gender.” Even though these arguments (and others) are based on the very words of the law and controlling Supreme Court precedents, the employers and the Solicitor General of the United States say that “sex” means different treatment of men and women based on sex assigned assigned at birth, and that there is no possibility that “sex” could have been understood to refer to LGBTQ people in 1964. But as amici briefs of leading historians and linguists demonstrated, sex was a broad term in 1964, and in the workplace was understood to prohibit sex role expectations. Because LGBTQ people were associated with such gender nonconformity, the federal agency that enforced the law actually processed complaints by LGBTQ individuals in the early years after the law was passed.
But even if the employers and the DOJ were correct that “sex” in 1964 only meant the sex one is assigned at birth, that doesn’t help them win the case. Even under their telling, it remains true that Zarda and Bostock were fired because they were men who dated men and would not have been fired if they were women who dated men, and that Stephens was fired because the employer was focused on her sex assigned at birth.
All of this is to say that what judges or the general public may have expected the law to cover in 1964 is not important analytically, only what it means via text, interpretation by the Supreme Court, and revision by the Congress. As Justice Scalia wrote in a case acknowledging that men could bring sexual harassment claims against other men under Title VII (and sexual harassment was not thought of as covered by sex discrimination in 1964), our laws “often go beyond the principal evil to cover reasonably comparable evils” and it is “our laws rather than the principal concerns of our legislators by which we are governed.”
With the filing of briefs from employers and their supporters, it is clear and not particularly surprising that the Court is receiving a heavy dose of fear mongering—arguments that turn on denying the simple realities that some people are LGBTQ and pose no threat to anyone because of who we are. Other briefs supporting the employers raise concerns that unless the Court excludes LGBTQ people from Title VII, religious organizations and individuals would have to comply with the nondiscrimination mandate, even though there are already limited exemptions. This is a transparent plea to the Court to deny the law’s coverage to LGBTQ people rather than simply apply the already existing and carefully crafted religious exemptions in Title VII previously adopted by Congress and applicable to all others protected by the law.
Here are snapshots of some of the 47 briefs filed in support of the employees:
Briefs Addressing the Text and Meaning of Title VII
- Amici briefs from the National Women’s Law Center and from anti-discrimination scholars addressed the sex stereotyping arguments – that LGBTQ people are not behaving or acting as they should given their assigned sex at birth – as consistent with Supreme Court precedents and Congressional updates to Title VII.
- GLAD and NCLR, together with the law firm Wilmer Hale, filed a brief on doctrine as well, citing bollixed up decisions across the country to show that there is no legally workable distinction between “sex” and discrimination for being LGBTQ.
- Lambda Legal filed two briefs (here and here) addressing the analytical flaws in judicial dissents in cases LGBTQ employees have won. Add 2 links because they did separate briefs.
- Governmental entities, including Members of Congress, and states spoke to their view that Title VII’s sex discrimination provision already includes LGBTQ people.
- The Transgender Law Center and 44 other groups made the case for per se sex discrimination when transgender people are mistreated at work, and the prevalence of discharges after transition.
- The Transgender Legal Defense and Education Fund took aim at the view of sex as rooted in anatomy and physiology, with a focus on reproductive organs, as advanced by Aimee Stephens’ former employer.
Briefs Addressing Impact
- The Lawyers Committee for Civil Rights Under Law, the Leadership Conference on Civil and Human Rights and 57 other civil rights groups spoke to why the law includes LGBTQ people and that excluding LGBTQ people from Title VII would most directly harm women of color.
- The Modern Military Association of America and Transgender American Veterans Association related the impact of discrimination on the families of transgender service members.
- Briefs of 206 businesses, and another by business organizations, including chambers of commerce, filed because of the employers’ interest in workforce diversity and because both employees and employers need consistency and certainty in application of our Nation’s nondiscrimination laws.
- For Labor, the SEIU, Teamsters Brotherhood and Jobs With Justice supported the sex stereotyping theory as applicable in these cases, and noted how discrimination against women in traditionally male dominated professions is often expressed as based on issues of sexual orientation and gender identity. The AFL-CIO noted how the application of sex discrimination to LGBTQ employees has helped arbitrators and employers to take more seriously anti-LGBTQ harassment in the workplace, including with respect to termination for just cause.
The case is headed to oral argument on October 8, 2019, with a decision likely to come from the Court at some point between January and June 2020.
Our non-discrimination laws exist to ensure greater fairness and equality for everyone. The Supreme Court ruling in this case could impact interpretations of sex discrimination across a range of areas beyond employment, including heath care, housing, and education. The employers in these cases are essentially asking the Supreme Court to take a giant step backwards by inventing an exclusion of LGBTQ people from our federal civil rights laws.
While we watch carefully for the outcome from the Court and prepare to respond, whatever it is, we can also all take action now by pressing the Senate and our state legislatures across the country to enact laws, like the federal Equality Act and our existing New England nondiscrimination laws that clearly and explicitly protect LGBTQ people in every area of life.