This is what’s at stake in the three LGBTQ rights cases now before the Supreme Court | Analysis

By Sharon R. Lopez

Federal law does not explicitly protect gay and lesbian employees from discrimination. However, the U.S. Supreme Court of the United States has decided to hear three cases that involve LGBTQ rights and non-discrimination in employment.

Two of the three cases the high court agreed to hear address civil rights protections for lesbian, gay and bi-sexual employees and one addresses transgender employees.  These are the first big cases being heard by the Court since former Justice Anthony Kennedy retired.

Kennedy was a champion of LGBTQ protections and his absence on the court leaves many wondering if the outcome of these cases will be protective of LGBTQ rights in the workplace.

All three cases are being heard together and oral arguments are set for next Tuesday, Oct. 8. The high court’s nine justices discussed these cases at least 14 times at their weekly conferences before finally deciding to hear them and decide what protections LGBTQ Americans have in the workplace.

Sexual orientation cases

The question presented on the two sexual orientation cases is the same.

The question is: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation? The Court will be looking for argument on the intent and the plain language of the statute.

Does sex discrimination include sexual orientation?

The cases being heard came from two different circuit courts, Bostock is from the U.S. Appeals Court 11^th Circuit and Zarda from the 2^nd Circuit appeals court, and have they reach contradictory outcomes and legal analysis.

The Bostock Case

The Bostock case involved a gay man, Gerald Bostock who claimed he was fired by the Clayton County Juvenile Court System in Georgia. He claimed he was fired because of his sexual orientation. The county claimed they fired him because of misuse of funds.

Bostock filed a complaint in the United States District Court for the Northern District of Georgia alleging he was fired because of his sexual orientation. He subsequently amended the complaint to include an allegation of unlawful discrimination for failing to conform to a gender stereotype.

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Clayton County, his previous employer, moved to dismiss the complaint arguing that the complaint did not state a viable claim for relief because Title VII does not protect anyone from discrimination based on sexual orientation. The district court granted the motion to dismiss. The Eleventh Circuit affirmed the decision.

The Zarda Case

Donald Zarda, an openly gay skydiving instructor, was fired by Altitude Express after a female customer’s boyfriend complained that Zarda had come out to her while preparing for a “tandem skydive” during which they would be strapped together.

He claims that he was fired because of his sexual orientation and because he does not fit in the sexual stereotype of a man. The district court dismissed both claims. The latter claim was dismissed because Zarda testified under oath that he is masculine and the former because the court found the law does not protect sexual orientation under Title VII of the Civil Rights Act.

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During Zarda’s litigation of the matter, the EEOC issued the opinion of Baldwin v. Foxx, which found “allegations of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex.” The district court did not find that the Baldwin case overruled existing Second Circuit precedent holding sexual orientation was not protected under Title VII.

Zarda was permitted to take his state claims, which did protect sexual orientation, to trial. However, the jury returned a verdict for the defense.

Zarda appealed to the Second Circuit Court of Appeals. They ultimately reversed the Title VII holding below and found sexual orientation is a subset of sex discrimination. The rationale was based on sex stereotyping because a sexual stereotype of being a man or a woman necessarily includes being attracted to the opposite sex.

Gender identity case – Harris

R.G. & G.R. Harris Funeral Homes Inc., v. Equal Employment Opportunity Commission, will be argued on the same day as Bostick and Zarda.

Aimee Stephens was hired by Harris Funeral Homes as Anthony Stephens in 2007. However, in 2013 Stephens wrote the Harris Funeral Home’s owner and said she identified as a woman and would be presenting as a woman at work.

A few weeks later the owner offered Stephens a severance package, which Stephens declined.  Harris Funeral Homes argued Stephens violated company dress code, and they would have continued Stephen’s employment but for Stephens’ insistence on presenting as a woman.

Harris Funeral Homes also argued that the company’s owner was very religious and interprets the Bible as teaching that sex is immutable. Harris Funeral Homes further argued that maintaining Stephens as an employee would force Rost to violate his faith. All parties accepted the owner’s religious sincerity.

Stephens filed a federal complaint under the Title VII sex discrimination provisions.

The district court found the EEOC, who litigated the case for Stephens, raised a viable sex stereotyping claim under Title VII.  Nevertheless, the district court ruled in favor of Harris Funeral Homes because of the Religious Freedom & Restoration Act (RFTA).

The district court held, “Since [the owner] cannot in good conscience ‘support the idea that sex is a changeable social construct,’ forcing him to allow a male funeral director to present as a woman while representing Harris Homes ‘would impose a substantial burden’ on [his] ability ‘to conduct his business in accordance with his sincerely-held religious beliefs.”

The Sixth Circuit reversed, finding that the word sex in Title VII necessarily includes gender identity. The Sixth Circuit also reversed the lower court’s reliance on the RFTA, finding there was no substantial burden on Rost’s religious exercise.

What should you expect from oral arguments in Bostock and Zarda?

Based on the oral arguments it is likely the Bostock and Zarda will focus on whether it is discrimination to treat all gays and lesbian same, in other words they both can be fired, or whether it is discrimination to treat gays and lesbians in a disparate manner from straight people.

The law has long looked to comparators to determine whether there is discrimination. Comparator arguments are challenging for sexual orientation cases.

There will likely be a lot of distinguishing between sex discrimination and sexual orientation by the opponents to LGBTQ rights. The advocates will likely refer to the Loving v Virginia case that found prohibiting marriage between an African American and white person discriminated, not only against the African American, but also created a disparate impact on the white person.

What should you expect from oral arguments  in the Harris Funeral Homes Case?

The arguments in the briefs center on the distinction of inclusion of gender in the word sex.  Title VII uses sex to define discrimination.

There is no specific provision that includes gender or gender identity in the definition of sex, so the nine high court justices that do not want this will focus on the plain language of the statute. The others will ask Harris counsel how gender is not within the meaning of sex.

I also expect some questions will arise about the Religious Freedom & Restoration Act and how that applies to employers with sincerely held religious beliefs. This was not well briefed by the participants but I expect Alito, Gorsuch, and Kavanaugh will at least inquire about this.

The Bottom Line?

Next week’s oral arguments will tell us if there is a swing vote. Most recently, Chief Justice Roberts has played that role.  I am attending the oral argument and will report back on the questions and inferences that can be drawn from the high court’s questions.

Sharon R. Lopez is an attorney for Triquetra Law, a law firm based in Lancaster, Pa. She wrote this analysis for The Central Voice, where it first appeared.