Divided Supreme Court Debates If Title VII Protects LGBT Employees

Author: David B. Weisenfeld, XpertHR Legal Editor

October 8, 2019

Does Title VII of the Civil Rights Act protect employees from being fired based on their sexual orientation, transgender or transitioning status? The Supreme Court wrestled with those questions today in two hours of highly charged oral arguments in the most notable employment law dispute on its fall schedule.

Sexual Orientation

The first hour focused on a pair of cases involving gay men who claimed their employers fired them based on their sexual orientation. A pair of federal appellate courts reached differing results, and the Supreme Court appeared deeply divided during the arguments.

Representing the employees, Pamela Karlan told the justices, "If a female employee can celebrate marrying Bill and gets a couple days off, but a man marrying Bill gets fired, that's discrimination." But Justice Samuel Alito said that if the Court were to recognize Title VII covers LGBT employees, "We would be deciding major policy issues that Congress has repeatedly failed to address."

Arguing for the employers, Jeffrey Harris picked up on that point in telling the justices, "Sex and sexual orientation are separate and distinct characteristics. That's just as true today as it was in 1964 [when Congress passed Title VII]."

But employees' attorney Karlan countered by citing the Supreme Court's seminal 1989 ruling in Price Waterhouse v. Hopkins that discriminating against an employee because she did not conform to gender stereotypes was a form of sex discrimination. She noted that a majority of federal judges have held that sexual orientation is encompassed in Title VII.

The sexual orientation cases are Altitude Express v. Zarda and Bostock v. Clayton County, Georgia.

Transgender Employee Rights

The second hour featured the issue of whether Title VII bans discrimination because of an employee's transgender or transitioning status.

The case Harris Funeral Homes v. EEOC involved a funeral home director who presented as a man but told his boss in a letter that she had struggled with a gender identity disorder her entire life and informed him that she intended to have sex-reassignment surgery. As a first step, she told him that she would return from an upcoming vacation as Aimee Stephens and dress in appropriate business attire.

But the funeral home owner fired Stephens, saying, "This is not going to work out." The employer offered Stephens a severance package, but she rejected it and filed suit. The funeral home defended that Stephens' transition would have placed a substantial burden on his sincerely held religious beliefs.

The Trump administration sided with the employers in all of the cases. In this one, it claimed religious liberty issues were at stake and that Title VII's history should make the result clear. But the Supreme Court's progressive wing disagreed. "Title VII is a statute about individuals," said Justice Elena Kagan. "Is a particular person being treated differently because of her sex? And here Ms. Stephens was," she noted. "If she had not been assigned at birth the sex that she was, she would have been treated differently."

Some of the Court's conservative justices voiced concern about the consequences should they rule for the employees. For instance, Justice Neil Gorsuch asked, "Shouldn't we take the massive social upheaval that could result into account? It's a matter of judicial modesty."

What's Next?

At least 21 states plus the District of Columbia have passed laws providing job protections for LGBT employees. But how the Supreme Court resolves these cases will directly affect the many parts of the US without such protections. In that regard, some have called this controversy even more significant than the Court's landmark same-sex marriage ruling in Obergefell v. Hodges.

It is worth noting that the author of the Obergefell ruling, Justice Anthony Kennedy, has since retired and been replaced by Justice Brett Kavanaugh, who revealed little during these latest arguments.

Speaking with XpertHR earlier this year, New York City employment attorney Jason Habinsky called it a "coin flip" as to where the justices go with these LGBT cases. Decisions are expected before the end of the Supreme Court's term in June 2020.