The Supreme Court should hold that the federal statute which prohibits employment discrimination “because of sex” prohibits discrimination based on sexual orientation and against transgender individuals.
When the Supreme Court returns from its summer recess, among the first cases it will hear will be three that raise the important question of whether federal law prohibiting employment discrimination protects LGBTQ individuals.
Until 1964, no federal law prohibited employment discrimination. The landmark Civil Rights Act of 1964 changed this by forbidding employers from discriminating based on race, sex or religion. There have been many attempts to amend the law to expressly prohibit discrimination based on sexual orientation, but Congress never has done this.
But now there are two cases before the Supreme Court, Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, Georgia, that involve individuals who were fired from their jobs when their employer learned that they were gay. In R.G. and G.R. Funeral Homes v. Equal Employment Opportunity Commission, an individual was fired when her employer learned that she was transitioning from being a man, Anthony Stevens, to a woman, Aimee Stevens.
The issue in all of these cases is what Title VII of the Civil Rights Act means in its prohibition of employment discrimination “because of sex.” No one denies that Congress in 1964 did not have in mind protecting gays and lesbians and transgender individuals from discrimination. In 1964, a majority of the states had laws that made it a crime to engage in private, consensual homosexual activity.
But the Supreme Court, and especially its conservative justices, long have said that the meaning of a statute should be determined based on its plain language. A simple example shows why firing an individual for being gay or lesbian or transgender is discrimination because of sex.
Imagine an employee named Chris who long has worked at a company, but never has met the employer in person. They have had many emails where Chris speaks of a husband and the husband’s work. When the employer meets Chris, the employer is surprised to discover that Chris is male. The employer says that homosexuality offends his religion and fires Chris. It is obvious that Chris was fired solely because of his sex. If Chris were a female, as the employer had assumed, Chris would still have the job.
Likewise, imagine that an employer has a rule, as did Harris Funeral Homes, that men must wear suits and women must wear skirts. The employee, Aimee Stevens, was fired because the employer deemed Aimee a transgender female to be male and thus not permitted to wear a skirt. That, too, is a firing just because of sex.Price Waterhouse v. Hopkins
That is exactly what employers do when they fire individuals for being gay or lesbian or transgender. They are discriminating because the employee does not fit the stereotype of being attracted to the opposite sex or not conforming to the employer’s conception of how a person should conform to the sex assigned at birth.
If the Supreme Court follows the plain language of Title VII, these should be easy cases. But there is little doubt that the Supreme Court will be ideologically split. The Trump administration has written briefs on the side of the employers in both cases. This is one of many cases where the Trump administration is coming down against advancing civil rights.
These may be cases where the absence of Justice Anthony Kennedy is profoundly felt. Kennedy wrote the majority opinion in every Supreme Court case in American history that expanded rights for gays and lesbians, including the rulings that declared unconstitutional state laws prohibiting same-sex marriage.
Perhaps his replacement, Justice Brett Kavanaugh, will vote the same way. But based on their rulings in cases involving marriage equality, there is little reason to be optimistic that the other conservative justices – John Roberts, Clarence Thomas, Samuel Alito or Neil Gorsuch – will be on the side of protecting gays, lesbians and transgender individuals.
Our society has advanced enormously in protecting people from discrimination based on their sexual orientation or sexual identity. The Supreme Court should do so in the cases to be argued in early October.