A Primer on Legal Protections for LGBT Employees: Past, Present, and Future (Part 3)

This is the third and final installment in a series examining legal protections for gay, lesbian, bisexual, and transgender employees, written in anticipation of the U.S. Supreme Court’s upcoming decision on whether Title VII’s protections are broad enough to forbid discrimination based on sexual orientation and gender identity. Part 1 of this series examined the early development of the decisional law on the foundational issue—whether the term “sex” as used in Title VII may properly be construed to mean something more than whether a person is, as a matter of biology, a man or a woman. Part 2 examined the current state of legal protections for LGBT workers, including efforts to secure statutory anti-discrimination protections and the EEOC’s push to convince courts that Title VII’s reference to “sex” includes sexual orientation and gender identity. This Part discusses the trio of cases on this issue currently before the Supreme Court and highlights some of the significant issues that employers should be on the lookout for when the Court rules, likely by June 2020.

The cases

On October 8, 2019, the Supreme Court heard a trio of cases presenting the issue of whether Title VII’s protections are broad enough to protect gay, lesbian, and transgender employees from discrimination. The cases—Harris Funeral Homes v. EEOC, Bostock v. Clayton County, and Altitude Express Inc. v. Zarda—reach the Court against the backdrop of significant disagreement that has developed very recently among federal courts about the meaning of “sex” as the term is used in Title VII.

The Harris case stems from the EEOC’s claim dating back to 2014 that a funeral home violated Title VII by firing a funeral director after she announced that she is transgender and would transition to a female gender identity. The funeral home won in district court, largely based on a religious liberty defense, but the case was appealed, and the Sixth Circuit found in March 2018 that discrimination against transgender employees is “necessarily discrimination on the basis of sex.”

Zarda arises from a skydiving instructor’s 2010 lawsuit against his employer and his allegations that he was fired unlawfully for disclosing that he was gay to a female customer who was uncomfortable about a tandem dive with a male diving instructor.  Zarda’s family lost after a jury trial in 2015 (Zarda died before trial, but his family prosecuted his claims), and again on appeal to the Second Circuit. But Zarda’s family later made a successful bid for a rehearing en banc, and the full Second Circuit reversed the panel decision, joining the Seventh Circuit in finding that Title VII’s protections extend to gay employees.

On the heels of Zarda, the Eight Circuit highlighted the split among appellate courts over the issue of Title VII’s reach when it ruled in Bostock that the district court below properly threw out as inviable a gay man’s claim that his employer fired him after it learned that he played on a gay softball team.

The arguments before the Court

The question before the Supreme Court can be simply stated: What does “sex” mean? But finding the answer has proven anything but straightforward as is evidenced by the arguments at play, which are nuanced and have been honed over decades of hard-fought litigation over the issue of whether LGBT employees are protected by Title VII.

Opponents of Title VII protections for LGBT employees generally coalesce around two arguments grounded in classic cannons of statutory interpretation: First, they argue that Congress could not have envisioned the term “sex” in Title VII to mean anything other than biological sex when the law was passed in 1964. Second, they argue that, with full awareness of this issue of Title VII coverage, Congress has repeatedly refused to amend Title VII to expand its reach to LGBT employees.

Proponents of a more expansive definition of “sex” under Title VII generally try to reframe the issue before the Court—eschewing focus on status as gay, lesbian, bisexual, or transgender and drawing attention instead to the ways these statuses are sex-dependent. Though the exact language used to describe the argument varies, the primary argument of coverage proponents is that sex is an inextricable factor in employment discrimination based on sexual orientation or gender identity—an employer only takes adverse action against a man who is romantically or sexually attracted to other men because he is a man. Proponents also advance the related contention that discriminating against a gay or lesbian employee is impermissible associational discrimination—i.e., that an employer who fires a lesbian employee is taking adverse action against the employee based on her decision to associate with a woman. Finally, coverage proponents assert that discrimination against LGBT employees is unlawful sex stereotyping, fitting neatly within the prohibition on such stereotyping articulated by the Court in Price Waterhouse v. Hopkins over 30 years ago.

What employers might expect from the Court when it rules

While it’s impossible to predict how the Supreme Court will rule on the question of Title VII’s scope, consensus is that the Court’s ruling likely will be 5-4 and that Chief Justice John Roberts and Justice Neil Gorsuch will play key roles in the outcomes.

During arguments on October 8, 2019, the Court’s more liberal wing—Justices Ginsburg, Breyer, Sotomayor, and Kagan—suggested through questioning that they are inclined to find that Title VII protects LGBT workers. For the most part, the Court’s more conservative Justices—Justices Thomas, Roberts, Alito, Gorsuch, and Kavanagh—expressed serious reservations about construing “sex” expansively enough to include sexual orientation and gender identity. Despite this, there are reasons to believe that Roberts and Gorsuch may have some ambivalence about the issue before the Court.

For his part, Roberts has labored to avoid having his judicial philosophy labeled, and his votes, including very significant ones, have not always aligned with those that would be expected from a conservative Justice, such as when he wrote the opinion that upheld the Affordable Care Act.

Speculation about Gorsuch’s possible uncertainty about his vote arises less from his votes in past cases (there are far fewer to parse) and more from his active questioning at argument. For example, Gorsuch pointed out during argument that Title VII only requires sex to be a cause of the employer’s action, and asked counsel for one of the employers how being fired for being a man who likes other men isn’t adequate to bring Title VII into play. Later, however, Gorsuch described the text of Title VII as “close” when asking one of the advocates whether the Court should consider the “massive social upheaval” that would follow a ruling interpreting “sex” expansively.

Alito, who almost certainly will vote against reading “sex” to include sexual orientation and gender identity, raised one of the more interesting points at argument when, in service of his contention that coverage proponents are trying to change the meaning of the word “sex,” he asked whether an employer would violate Title VII if it refused to hire a candidate who was gay but whose gender was unknown. After clarifying with Alito the parameters of the hypothetical posed—including through a “Saturday Night Live Pat” reference that Alito said he didn’t understand—counsel, a coverage proponent, conceded that the situation described would not violate Title VII. This concession is significant because it acknowledges that there is some distinction between sex and sexual orientation. But whether it’s a distinction that makes a difference remains, even after oral arguments, far from clear.

No matter how the Court ultimately resolves the Title VII-coverage issue, there are at least two other significant reasons for employers to keep an eye on these cases:

  • First, Roberts has indicated in past decisions (including recently, in last year’s Masterpiece Cakeshop decision) that he is deeply concerned about the possible collision between anti-discrimination laws and religious liberty protections. Some watching the cases currently before the Court believe that Roberts may try to cut a path that balances competing interests, such as finding that sexual orientation and gender identity may be covered under Title VII subject to such protections being balanced against an employer’s religious liberty interests.
  • Second, Court watchers are eager to see how the upcoming decision impacts what was believed until recently to be well settled Title VII precedent. Because two important Supreme Court precedents—Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services—form the foundation of recent decisions concluding that Title VII protects LGBT employees, it is likely that the Court’s decision will delve deeply into those precedents. And some believe that a decision against expansive Title VII coverage would necessarily require the Court to rein in the sex stereotyping and same-sex harassment protections confirmed by the Court in Hopkins and Oncale.

The bottom line for employers

While waiting on the Supreme Court’s decision, which most likely will be issued by June 2020, employers should continue to monitor developments with respect to Title VII and LGBT employees. The pace of developments in this area of the law continues to accelerate, and employers should give thought, to the extent they have not already done so, to policy and operational changes that may be necessary if the Supreme Court rules that Title VII protects LGBT employees.

In particular, employers should consider:

  • whether discrimination, harassment, and other employment policies will need to be updated to include sexual orientation and gender identity;
  • whether employee training programs will need to be expanded to cover issues relating to sexual orientation and gender identity;
  • whether there is a plan in place for how the employer will respond to an employee who gives notice that he or she is transgender and will transition;
  • what the employer’s approach to use of an employee’s preferred pronouns and names in the workplace should be; and,
  • whether creation of an LGBT employee affinity group could assist the employer as it considers changes to ensure a diverse and inclusive work environment.

Employers also must keep in mind that they may operate in jurisdictions in which state or local law already protects LGBT workers. If employers have not conducted a coverage audit to determine whether they are covered by such laws, they should do so.

Finally, certain employers watching the Court may decide that the upcoming decision will not impact policy with respect to LGBT workers. Even in the absence of clear legal protections, many employers have established internal policy protections for such workers in connection with diversity and inclusion efforts. These employers likely will choose to stay the course without regard to the Supreme Court’s ruling in 2020.