WHERE ARE WE four years after the U.S. Supreme Court decided that marriage for same-sex couples was a Constitutional right? On the employment front, there is still no federal law that explicitly prohibits workplace discrim-ination against LGBT people. Consequently, the American workplace constitutes a stubborn holdout in the march toward LGBT equality, a region of life where homophobia can still rear its ugly head.
Although Title VII of the Civil Rights Act of 1964 bars employers from engaging in discrimination on the basis of an employee’s race, color, religion, sex, or national origin, courts and legislatures have been split over whether these protections extend to LGBT workers. Consequently, there is no uniform federal law that prohibits discrimination on the basis of sexual orientation and gender identity in the workplace. Instead, there is a complex patchwork of antidiscrimination laws and protections for LGBT workers from various sources leading to major geographic inequalities and confusion.
However, the U.S. Supreme Court recently announced that it will hear three cases to settle whether Title VII safeguards LGBT people from workplace discrimination, with decisions likely to be issued in June 2020.
Although the hope is that the Court will provide much-needed resolution to this issue, the concern is that its current makeup will shift the prior Court’s forward-leaning majority in favor of LGBT rights into reverse. If so, current Title VII rulings providing protection from discrimination to LGBT employees may be at risk.
While there is no federal law that provides employment discrimination protections based on sexual orientation, advocates for LGBT equality argue that the ban on sex discrimination in Title VII applies to LGBT employees. This argument asserts that firing, harassing, failing to promote, or otherwise discriminating against an employee based on his or her LGBT status is a form of sex stereotyping and thus of sex discrimination.
Although some state and local governments prohibit discrimination based on sexual orientation and identity, there remain numerous states where an employee can be legally fired based on his or her LGBT status. The Williams Institute at UCLA estimates that about half of the 8.1 million LGBT workers in the U.S. live in states that do not provide protection based on sexual or gender orientation. In the private sector, the vast majority of Fortune 500 companies extend legal protection to LGBT employees, but many smaller companies do not. Moreover, despite Supreme Court jurisprudence providing an expansive view of “sex,” the federal appellate courts are split, along with federal agencies, regarding whether LGBT employees are entitled to workplace protection. This absence of uniform laws has prevented consistent legal outcomes and applications for employers and employees alike and undermined advancements in LGBT rights.
Legislative Efforts
The U.S. has a complex patchwork of anti-discrimination laws and protections for LGBT workers, including: Title VII, presidential executive orders, private employer initiatives, city and county ordinances, and state legislation, none of which are able to encompass all LGBT workers. Congress has seen many proposals for legislation that would ban discrimination based on sexual orientation, but none has ever been enacted. The two leading pieces of legislation that Congress has considered are the Employment Non-Discrimination Act (ENDA) and the Equality Act. ENDA is a piece of stand-alone legislation that creates its own unique protections for LGBT workers, while the Equality Act amends Title VII to include sexual orientation and identity.
The latest version of ENDA, proposed in 2013, makes it unlawful for employers to discriminate based on an individual’s “actual or perceived sexual orientation or gender identity” with respect to hiring, discharging, compensation, and terms, conditions, or privileges of employment. It also bans employers from discriminating against employees for being associated with coworkers who identify as LGBT. It forbids employers from retaliating against employees who report them under ENDA. The bill got farther in Congress than any previous bills when it passed the Senate in November 2013. House Speaker John Boehner, however, did not allow the bill to reach the House floor for a vote, even though it probably had majority support. Thereafter, legislators deserted ENDA and turned their attention to the Equality Act.
It was in 1974 that the Equality Act was proposed as the first piece of federal legislation that included sexual orientation among a number of categories protected from employment discrimination. However, this law was undermined by the passage of the freestanding Americans with Disabilities Act, which signaled that a “stand-alone” civil rights law was more palatable to Congress than broad-based civil rights protection. The Equality Act was abandoned and replaced with ENDA, which, in turn, has been put on the back burner as legislators return once again to the Equality Act.
In 2015, Senator Jeff Merkley and Representative David Cicilline re-introduced the Equality Act, adding both sexual orientation and gender identity to the protected classes encompassed within Title VII. The House passed the Act in May of this year, bringing the U.S. a step closer in providing uniform federal protection to LGBT employees. However, the Equality Act’s amendments are not in effect now, and there’s a strong likelihood that it won’t be introduced in the Republican-controlled Senate. Thus it is likely that the issue will be resolved through the Supreme Court’s certiorari grant to hear three cases in the upcoming 2019-20 term.
Supreme Court Cases
The trio of cases the Supreme Court agreed to hear demonstrate the division among federal circuit courts and conflicting interpretations of Title VII by federal agencies. In Zarda v. Altitude Express, the Second Circuit, which oversees Connecticut, New York, and Vermont, interpreted Title VII as applying to sexual orientation. In Bostock v. Clayton County, Georgia, the Eleventh Circuit, which has jurisdiction over federal cases in Alabama, Florida, and Georgia, came to the opposite conclusion. The third case, from Michigan, concerns a transgender woman who was fired from her job at a funeral home because of her gender expression. The court in the Sixth Circuit ruled that she was protected by Title VII. Since lower federal courts have been divided on whether Title VII bars discrimination based on sexual orientation or gender identity, this series of three cases will open the door for the Supreme Court to settle the issue for the whole country.
In the first case, Altitude Express Inc. v. Zarda, Don Zarda was a licensed tandem sky-dive instructor. Throughout his career, Zarda identified as an openly gay man and was widely respected for his excellent job performance. In the spring of 2010, he was recruited by Altitude Express, located in Calverton, New York. According to Zarda, Altitude Express maintained a workplace culture that caused him not only to feel excluded but also to find himself the butt of coworkers’ and managers’ jokes and harassment. He described the workplace as “hostile to any expression of sexual orientation that did not conform to sex stereotypes.”
Nevertheless, in the interest of professionalism Zarda quietly tolerated his situation until his eventual termination resulting from a client’s complaint in June 2010. This complaint, made by a female client, allegedly concerned the conflicting duality of both Zarda’s expression of sexual orientation toward the client and inappropriate touching of the client. Upon receiving this single complaint, Zarda was suspended and terminated. Given the routine nature of the specific jump in question, the identical behavior of his straight male coworkers, references by his manager to “gay escapades” during his termination, and prior instances of perceived harassment based on his sexuality, Zarda believed his termination resulted from unlawful employment discrimination based on his sexual orientation. He quickly filed suit in federal court.
Eight long years later, having since passed away tragically, Zarda’s federal lawsuit was finally permitted to proceed. As federal law does not recognize employment rights based on sexual orientation, his federal lawsuit was dismissed at first, because he was essentially making an argument that did not exist in the trial court’s eyes. What followed was a lengthy appeals process in the Second Circuit. In deciding the appeal, the court reframed the legal issue. Rather than asking directly whether Title VII includes employment protection for sexual orientation, the judges questioned whether the recognized protected class based of “sex” could be interpreted to encompass sexual orientation. The court ruled that “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”
The ruling in this case is one of two decisions by the federal appeals courts in which sexual orientation discrimination is unequivocally prohibited under federal law (the other being a decision from the Seventh Circuit, which oversees Illinois, Indiana, and Wisconsin). Unfortunately, not every court is in alignment with the decision in Zarda and the conclusion that Title VII protects LGBT workers.
The second case is Bostock v. Clayton County, Georgia. There, the plaintiff, Gerald Bostock, was a child welfare services coordinator for Clayton County, Georgia. He received favorable performance evaluations and was given primary responsibility for the Clayton County Court Appointed Special Advocates program (CASA). However, in April of 2013 Clayton County advised Bostock that it was conducting an internal audit on the CASA program funds. Bostock alleges that he never engaged in any misconduct with regard to the program funds, and that Clayton County initiated the “audit” as a pretext for discrimination against him because of his sexual orientation as an openly gay man.
Within months of his termination, Bostock filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Three years later, in 2016, he filed a pro se lawsuit against the county alleging discrimination based on sexual orientation, in violation of Title VII. The district court dismissed his lawsuit for failure to state a claim, finding that Bostock’s claim relied on an interpretation of Title VII as prohibiting discrimination on the basis of sexual orientation that was contrary to prior precedent. Bostock appealed, and the Eleventh Circuit affirmed the lower court. In addition to noting procedural deficiencies in the appeal, the Eleventh Circuit panel pointed out that it could not overrule a prior panel’s holding in the absence of an intervening Supreme Court or Eleventh Circuit decision.
The third case is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission and involves not sexual orientation but gender expression. The case before the Supreme Court involves a ruling by the Sixth Circuit Court of Appeals that the funeral home engaged in unlawful sex discrimination when it fired their director, Aimee Stephens, because she was transgender. Here, Harris Funeral Homes is asking the Supreme Court to review the case.
In the case, the plaintiff, Aimee Stephens, had worked for nearly six years as a licensed funeral director and embalmer for Harris Funeral Homes when the primary owner of the company, Thomas Rost, fired her in August 2013. Although she was assigned male at birth, Stephens had known from a young age that she was female. She eventually wrote a letter to her co-workers explaining her lifelong struggle and her decision to come to work as woman. Two weeks later, Stephens informed her boss of her decision. Shortly thereafter, she was fired because “he was no longer going to be a man.” It is not disputed that Stephens performed her duties well and that her termination was unrelated to her job performance.
After Stephens was fired, she filed a complaint with the EEOC, which sued the funeral home. The agency accused the funeral home of firing Stephens for being transgender and for refusing to conform to sex-based stereotypes. A district court agreed with the funeral home that Title VII did not protect transgender people. But it found that the funeral home did discriminate against Stephens for her refusal to conform to its “preferences, expectations, or stereotypes” for women. The EEOC appealed, and the Sixth Circuit ruled in favor of Stephens and the EEOC in March. The funeral home’s lawyers accused the court of exceeding its authority by expanding the definition of “sex” in a way that threatens to shift what it means to be a man or a woman. Subsequently, lawyers representing the funeral home petitioned the Supreme Court to take up the case to determine if transgender individuals are protected under Title VII’s sex-based provisions.
Why Employment Equality Matters
The Supreme Court’s decision could have broad implications for the definition of sex-based discrimination and could impact case law that precludes firing anyone for not adhering to sex-based stereotypes. Recent additions of conservative justices Neil Gorsuch and Brett Kavanaugh to the Court may now delay full employment equality in the foreseeable future. This comes at a great cost, not only for the LGBT community but also for the country as a whole. While same-sex marriage steals the headlines, employment discrimination, beyond its inherent unfairness, carries significant economic costs. Companies are most competitive when they hire the most talented workers for a given job, but discrimination may lead some employers to not hire the best candidates. Businesses that discriminate effectively restrict their hiring to a smaller pool of workers, which can lead to reduced productivity and lower profits. In addition, a hostile work environment can lead to greater turnover. This also results in labor inefficiencies and significant costs for American businesses.
Discriminatory hiring has serious consequences for employees and job seekers as well. Research on discrimination based on sexual orientation has shown that prejudices in hiring do occur, as do wage gaps between some gay employees and their heterosexual counterparts. Restricting the economic potential and buying power of a subset of the population creates a drag on national economic growth. As the Supreme Court addresses this issue, they must consider both the importance of protecting all citizens from discrimination and the significant economic costs to the U.S. The consequences of inequality across this new frontier are near and severe for all. Pioneers in the form of activists and advocates are needed now more than ever to settle, establish, and lead the way across it.
William Murphy, J.D., and Sejal Singh, J.D., serve as full-time faculty of the Division of Criminal Justice, Legal Studies, and Homeland Security in the College of Professional Studies at St. John’s University. Their research includes underexplored issues in employment and labor law, tension between new technologies and the law, and experiential learning.
