SCOTUS Takes Up Employment Cases

Apr 23, 2019

The Supreme Court announced it would hear three cases this fall regarding whether federal anti-discrimination laws should apply to “sexual orientation” and “gender identity.” Decisions in the cases are expected by June 2020.

The Supreme Court’s order refers to Title VII, the part of the Civil Rights Act of 1964 that prohibits employers from discriminating on the basis of race, color, religion, sex and national origin. Two lower federal courts disagreed on whether the plain wording of the law should include “sexual orientation.” A third case ruled that the law should include “gender identity.”

The first case, Bostock v. Clayton County, Georgia, will decide whether discrimination against an employee because of sexual orientation constitutes employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964. Gerald Bostock claims he was fired from his job as a child welfare services coordinator for a Georgia county’s juvenile court system when his employer found out he is homosexual. The lower court ruled that Bostock was discriminated against, but that “sex” does not mean “sexual orientation” and as such, there is no legal cause of action.

Bostock has been consolidated with the second case, Altitude Express Inc. v. Zarda, which asks the same question and is coming from the U.S. Second Circuit Court of Appeals. In this case, a skydiver, Donald Zarda, told a female jumper not to worry about being strapped to him because he was homosexual. Her boyfriend complained to Altitude Express and Zarda was fired. The skydiver sued Altitude Express. Zarda died in an October 2014 base-jumping accident, but his family pressed forward with the case on his behalf. In early 2018, the court ruled in his favor. A 10-4 majority found that discrimination on the basis of “sexual orientation” violates the Civil Rights Act. 

The third case, R.G. & G.R. Harris Funeral Home Inv. v. Equal Employment Opportunity Commission, will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against “transgender” people based on their status under Price Waterhouse v. Hopkins, a 1989 Supreme Court ruling that established gender stereotyping is actionable as sex discrimination.

In 2007, the funeral home hired a person whose employment records identified him as a man. Six years later, owner Thomas Rost fired the employee from a position as a funeral director two weeks after he disclosed plans to return from a 2013 vacation as a woman. The company says the employee would have been in violation of its dress code, which requires men to wear a suit and women to wear a skirt and suit jacket. Rost stated that “the employee’s actions would violate the company’s sex-specific dress code and disrupt the healing process of grieving families.” The EEOC filed suit and attempted to force the business to allow a biologically male employee to wear a female uniform while interacting with the public. The court overturned a district court ruling and agreed with the EEOC that sex does include “gender identity.”

In response to the news that the cases are heading to the Supreme Court, the Human Rights Campaign called on Congress to pass HR 5, which would include “sexual orientation” and “gender identity.” The so-called “Equality Act” was introduced in the House last month. This bill threatens the free exercise of religion and free speech, amends the Civil Rights Act of 1964 by adding “sexual orientation” and “gender identity” as protected classes throughout the federal code. This amendment applies to employment, housing, rental, public accommodation, and more.

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