According to news reports, the U.S. Supreme Court will soon consider, and hopefully decide, whether to review lower court decisions addressing whether sexual orientation and gender identity discrimination violate Title VII of the Civil Rights Act of 1964.

Virtually everyone agrees that in 1964, when Title VII was enacted, no one thought “sex” meant anything other than biological males and biological females. However, interpretations of the word “sex” have obviously changed since 1964.

The Supreme Court view of discrimination based on “sex” has evolved over time. Title VII doesn’t mention sexual harassment, but the Court recognized hostile work environment harassment as a variety of sex discrimination in 1986. The Supreme Court also recognized the concept of unlawful sex stereotyping in Price Waterhouse v. Hopkins (1989) and again in Oncale v. Sundowner Offshore Services (1998).

Despite these decisions, most federal courts until very recently had found that sexual orientation discrimination did not violate Title VII. The decisions regarding gender identity discrimination under Title VII were more mixed.

On numerous occasions, Congress has considered legislation to make LGBT status a protected class, but the efforts thus far have been unsuccessful.

Things began to change in 2012, when the U.S. Equal Employment Opportunity Commission changed its position and determined that discrimination based on gender identity did violate Title VII. A few years later, the EEOC took the position that sexual orientation discrimination also violated Title VII.

In 2017, the U.S. Court of Appeals for the Seventh Circuit ruled en banc in Hively v. Ivy Tech that sexual orientation discrimination was indeed a form of sex discrimination prohibited by Title VII. (The Hively case settled after remand.) Since Hively, the Second Circuit has agreed with the Seventh, and the Sixth Circuit has found that gender identity discrimination violates Title VII. Meanwhile, the Eleventh Circuit has held that sexual orientation discrimination does not violate Title VII.

The Supreme Court will soon consider whether to review some or all of these three decisions:

Zarda v. Altitude Express (2d Cir): The court held that sexual orientation discrimination violates Title VII. The employer has petitioned for certiorari.

Bostock v. Clayton County (GA) (11th Cir): The court held that sexual orientation discrimination does not violate Title VII. The former employee has petitioned for certiorari.

EEOC v. R.G. & G.R. Funeral Homes (6th Cir): The court held that gender identity discrimination does violate Title VII and also indicated that it would follow the Hively and Zarda decisions if faced with the issue of sexual orientation discrimination under Title VII. The funeral home has petitioned for certiorari.

Interestingly, the U.S. Department of Justice and the EEOC disagree as to whether Title VII protects LGBT rights. (The EEOC Commissioners are all appointees from the Obama Administration; President Trump’s nominees have yet to be confirmed.) As a result of the conflict between the two federal agencies, the DOJ has asked the Supreme Court to defer ruling in the R.G.-G.R. case until after it decides the other two cases (or decides not to review them).

Based on conflicting amicus briefs filed by the two agencies in the Zarda case, the EEOC’s briefing in the R.G.-G.R. case, and briefs that the two agencies have filed in other litigation, here is a summary of their respective positions.

ISSUE 1: Legislative intent

DOJ: Congress has had many chances to amend Title VII to include sexual orientation discrimination, but has failed to do so. In 1978, Congress enacted the Pregnancy Discrimination Act so that pregnancy and related conditions would be protected. In 1991, Congress enacted the Civil Rights Act of 1991, which legislatively overruled some “conservative” Supreme Court decisions. Even though there were court decisions in place by 1991 that said sexual orientation discrimination was not protected by Title VII, Congress chose not to include LGBT protections in the Civil Rights Act.

EEOC: The courts can, and frequently do, logically extend the scope of a law beyond its original intent, as in the cases of harassment and sex stereotyping. The logical extension today would be to extend Title VII’s protections to sexual orientation and gender identity.

ISSUE 2: Gender stereotyping

DOJ: Discrimination based on sexual orientation is not the same thing as sex stereotyping. According to the DOJ, “[T]he employer may have treated homosexuality differently for reasons such as moral beliefs about sexual, marital, and familial relationships that need not be based on gender at all.”

EEOC: Discrimination based on sexual orientation really is a kind of gender stereotyping. Instead of discriminating because the person appears to be inappropriately “masculine” or “feminine” (as was the case in Oncale and Price Waterhouse), the employer is discriminating because the individuals do not fit into stereotypes regarding who should be attracted to whom. This is just one more variety of sex stereotyping, which the Supreme Court has already declared unlawful.

ISSUE 3: Associational discrimination based on sex

DOJ: Discrimination based on sexual orientation is not “associational discrimination” based on sex. Even though Title VII would prohibit an employer from discriminating against an employee for, as an example, having a relationship with someone of a different race, that is not the same as discriminating because an employee chose to have a relationship with someone of the same sex. In the case of an interracial relationship, the discrimination arises from the view that one partner’s race is inferior to the race of the other. “By contrast,” according to the DOJ, “an employer who discriminates against an employee in a same-sex relationship is not engaged in sex-based treatment of women as inferior to similarly situated men (or vice versa), but rather is engaged in sex-neutral treatment of homosexual men and women alike.”

EEOC: Discrimination based on sexual orientation is a form of associational discrimination prohibited by Title VII. Just as it would be illegal to discriminate against, for example, a white employee because he was married to an African-American woman, it would be illegal to discriminate against (again, as an example) a male employee because he was married to a man, or attracted to men.

The Supreme Court had been scheduled to consider the petitions in Zarda, Bostock, and R.G.-G.R. this Friday, November 30. However, consideration of these cases was “rescheduled” on November 26 with no comment and no new date. The Court has one more conference in 2018, on December 7. The next conference is on January 4, 2019.

November 28, 2018/by Labor