SCOTUS Watch: Significant Employment Decisions on the Horizon

On October 8, 2019, the United States Supreme Court will consider three companion cases concerning whether Title VII of the Civil Rights Act of 1964 guarantees gay and transgender employees across the nation protection from workplace discrimination. In two cases, the Court will decide whether sexual orientation discrimination is a form of sex discrimination within the meaning of Title VII. In the third, the Court will decide whether Title VII prohibits discrimination against transgender people.  The Supreme Court’s decisions to both these questions will have dramatic impact on the rights (or lack thereof) of LGBT persons throughout the country.


The outcomes of these cases will not only have a significant impact on employees’ rights nationwide, they will also have a significant impact on the individual employee-plaintiffs in each lawsuit. For some brief background, their stories are presented below:

(1)       Bostock v. Clayton County

Gerald Bostock dedicated a decade of his career developing a government program to benefit neglected and abused children in Clayton County, Georgia. In 2013, Bostock joined a gay recreational softball league. Just a few months later, Bostock was terminated for “conduct unbecoming a county employee.” His employer asserted it fired him following an audit indicating Bostock misused county funds, which Bostock denies. The Supreme Court’s decision will determine whether Bostock is entitled to his day in court before a jury.

(2)       Altitude Express v. Zarda

Donald Zarda, a skydiving instructor was fired because he disclosed to a client that he is gay. Shortly thereafter, Zarda was terminated. Although Zarda is now deceased, his estate is pursuing his case.

The New York trial court determined that Title VII prohibits employment discrimination on the basis of race, color, religion, sex and national origin, but not sexual orientation. On appeal, a divided 13-judge panel of the United States Court of Appeals for the Second Circuit determined that Zarda’s lawsuit could proceed. In reaching its decision, the court wrote “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” Zarda’s former employer Altitude Express appealed that decision to the Supreme Court.

(3)       Stephens v. R.G. and G.R. Harris Funeral Homes

Aimee Stephens worked at R.G. and G.R. Harris Funeral Homes and until 2012, lived a double life – living as a woman while at home and a man while at work. Stephens penned a letter to her employer explaining that she would be transitioning from male to female, which ultimately resulted in her termination. In March 2018, the Sixth Circuit Court of Appeals ruled that Stephens was unlawfully fired and that federal sex discrimination laws protect transgender individuals. The funeral home has appealed.

Stephens’ case before the Supreme Court has additional support from the American Civil Liberties Union (ACLU) and the Equal Employment Opportunities Commission (EEOC). Interestingly, the funeral home’s appeal is supported by the Department of Justice, which argues it should be legal to fire and discriminate against transgender employees.

In 2015, the Supreme Court decided Obergefell v. Hodges and struck down state bans on same-sex marriage, ruling that the Constitution guarantees a right to such unions. Despite the Federal Constitutional right to same-sex marriage, employers in more than half the states can legally fire gay employees. While many federal appeals courts have interpreted Title VII to exclude sexual orientation discrimination, courts in New York and Chicago have determined that discrimination against individuals on the basis of their sexual preference is a form of sex discrimination. In other words, there is disagreement among the federal courts on the proper interpretation of this federal law. The Supreme Court’s consideration of these three companion cases will hopefully provide clarity on these interpretive disagreements.

The impact will not be as significant to states who already have laws in place that prohibit LGBT discrimination.  In New Jersey, the New Jersey Law Against Discrimination prohibits discrimination based on sexual or affectional orientation. The law provides equal protection for men and women and includes protection against discrimination on the basis of: heterosexuality, homosexuality, bisexuality, transgender, and gender identity or expression. It is unlawful for an employer to discriminate against an employee based upon sexual or affectional orientation.

It also unlawful under New Jersey law for an employer to permit a harassment or a hostile work environment to exist based upon an employee’s sexual orientation.  A hostile work environment based upon affectional or sexual orientation occurs when an employee is subjected to sexually harassing and unwelcomed conduct, that occurs because of the employee’s affectional or sexual orientation, and which a reasonable person of the same affectional or sexual orientation would consider sufficiently severe or pervasive to alter the conditions of employment. If an employer knows or should know of the hostile work environment, it is required to remediate and stop it. If the employer does not remediate or stop it, they are looked at as joining the harasser in making the working environment hostile, and as sending the harassed employee the message that the harassment is acceptable.

Whether current sex discrimination laws protect LGBTQ people from workplace discrimination is an important question that is ripe for the Court to decide. The Supreme Court’s decision, following its October 8th hearing of oral arguments in the three cases, will likely result in a final decision of whether LGBTQ employees have workplace protections against discrimination, harassment and retaliation across the country.

Regardless of the outcome, it is important that the Supreme Court settle the disagreement that currently exists among the various federal courts on the proper interpretation of Title VII. If the effect of that outcome is to lessen employee rights and sanction discrimination against individuals because of their sexual orientation and/or gender identity, then it will be up to Congress to amend the law. This would not be the first time that a Civil Rights statute, indeed this very statute, was read restrictively. For example, in the 1976 case General Electric Co. v. Gilbert, the Supreme Court found that discrimination against women based on their pregnancy was not prohibited sex discrimination under Title VII. While this was a regrettably narrow interpretation, it left Congress to decide whether such discrimination should be prohibited. Just two years later, they answered the question in the affirmative by passing the Pregnancy Discrimination Act of 1978, amending Title VII to cover such discrimination.

If the Supreme Court applies a similarly narrow interpretation in the Title VII cases this term, it will again be up to Congress to amend the law in order to protect individuals from facing employment discrimination on the basis of their sexuality or gender identity.  We will see very soon.

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