LGBTQ Rights at Stake Before the Supreme Court: Cert Petitions to Watch

The Supreme Court has begun its new term, and the Gender Equality Law Center is closely watching several petitions that would give the Court the opportunity to rule upon critical LGBTQ workplace protections.

Most notably, several petitions would ask the Court to determine whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex and other protected characteristics, necessarily encompasses and proscribes sexual orientation and/or gender identity discrimination.

If the Court decides to hear any of these cases, its determinations could critically alter the landscape of federal workplace protections for LGBTQ individuals—including those who are discriminated against and those who are sexually harassed.

Below is an overview of the cases and the rights at stake:

Altitude Express Inc. v. Zarda

In 2018, the Second Circuit held for the first time that Title VII protects employees from discrimination based on their sexual orientation.

Zarda involved a plaintiff who was terminated from his job as a skydiving instructor after telling a client that he was gay. The Second Circuit reasoned that sexual orientation discrimination is “comparable to [. . .] gender stereotyping, and other evils long recognized as violating Title VII,” and looked to both the Seventh Circuit’s decision in Hively v. Ivy Tech and the EEOC’s determination in Baldwin v. Foxx that sex discrimination includes discrimination based on sexual orientation.

In so ruling, the Second Circuit joined the Seventh Circuit, which was the first federal Court of Appeals to hold that Title VII encompasses sexual orientation discrimination as unlawful sex discrimination.

Bostock v. Clayton County Board of Commissioners

An employee who was denied the right to sue his employer under Title VII has filed a petition for cert on the same issue following the Eleventh Circuit’s decision that sexual orientation discrimination is not prohibited by Title VII. The Eleventh Circuit, in reaching the opposite conclusion as the Second Circuit in Zarda, relied on its 2017 decision in Evans v. Georgia Regional Hospital, which held that while discrimination rooted in sex stereotyping violates Title VII, discrimination based on sexual orientation does not.

The Eleventh Circuit’s reasoning can lead to bizarre and unfair outcomes—for example, a gay employee who is fired because he presents in a traditionally less masculine manner may be protected by Title VII, while a gay employee who is fired because he is gay—but presents himself in a traditionally masculine way—is not similarly protected.

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Opportunity Employment Commission

The Sixth Circuit recently held that transgender discrimination is necessarily “sex based” discrimination, and is prohibited by Title VII. This case involved an employee who was terminated from the funeral home where she had worked for six years after telling her employer that she was transitioning from male to female.

The Sixth Circuit found that transgender discrimination is prohibited under Title VII both because it is motivated by impermissible sex stereotyping and because “sex discrimination” logically encompasses transgender discrimination for two reasons: first, because it is “analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex”; and second, because discrimination based on a change in sex must be sex discrimination, just as discrimination based on a change in religion is religious discrimination.

The employer raised the federal Religious Freedom and Restoration Act (RFRA) as an affirmative defense. RFRA prohibits the government from enforcing a religiously neutral law against an individual if that law substantially burdens the individual’s religious exercise and is not the least restrictive means of furthering a compelling government interest. The employer was able to raise this defense because the suit was originally brought by the EEOC before the individual plaintiff joined. The court found that there was no RFRA violation, as the employer did not show that employing a transgender individual was a “substantial burden” to his religious exercise and noted that “tolerating [the plaintiff’s] understanding of her sex and gender identity is not tantamount to supporting it.” The court held that even assuming there was a substantial burden articulated, the government has a compelling interest in preventing sex based discrimination in employment.

If the Supreme Court grants certiorari, the Sixth Circuit’s analysis that transgender discrimination violates Title VII, as well as its RFRA analysis, which sends the message that religious freedom cannot be weaponized to legitimize discrimination, could both be in jeopardy.

With these three petitions for cert pending, basic workplace protections for LGBTQ employees are at stake. If the Court determines that Title VII does not prohibit discrimination based on sexual orientation or transgender status, LGBTQ individuals throughout the country will be more vulnerable than ever to discrimination and harassment in the workplace and other areas. Even if the Supreme Court does not grant cert this term, due to the widening circuit split, it is likely that the Supreme Court will eventually hear these issues and determine whether discrimination based on sexual orientation and transgender status are prohibited by Title VII.

If the Supreme Court agrees to hear these cases in the upcoming term, we hope to see decisions that confirm critical workplace protections for LGBTQ individuals. The Gender Equality Law Center celebrates decisions such as those in Zarda and Harris, which have recognized the practical realities of sex discrimination and harassment against LGBTQ individuals in the workplace.