High Court LGBT Decision Could Upend Sex-Stereotyping Bias

Oct. 8, 2019, 7:23 PM

A U.S. Supreme Court ruling that rolls back federal civil rights protections for LGBT workers could impact anyone who doesn’t conform to gender stereotypes in the workplace and further shift away from policies major companies already have adopted.

The trio of cases the justices heard on Oct. 8—Altitude Express v. Zarda, Bostock v. Clayton Cty., Ga., and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC—examine whether sexual orientation and gender identity should be covered by sex discrimination protections under Title VII of the 1964 Civil Rights Act. Advocates say the decision could stretch beyond whether employers can fire workers for being gay or transgender, and redefine sex-stereotyping restrictions that have existed for decades.

The justices turned on a key question for employers that revolves around a 1989 Supreme Court ruling in Price Waterhouse v. Hopkins, the landmark case that cemented the idea that employers can’t punish workers if they don’t fit gender stereotypes. In that case, the court held that the company couldn’t discriminate against Ann Hopkins, who was told she needed to “walk more femininely, talk more femininely, wear makeup and have her hair styled, and wear jewelry” to advance in the workplace.

How to apply that case was a central theme throughout arguments over both sexual orientation and gender identity. Attorneys for the workers argued that discriminating against a man for being attracted to another man was a sex stereotype because he doesn’t conform to expectations. Similarly, they argued that a transgender worker presenting as the sex other than what he or she was assigned at birth should fall under that stereotyping umbrella.

The employers’ attorneys, along with Solicitor General Noel Francisco, argued that gender identity and sexual orientation creates a new protected category that isn’t covered by Title VII. Francisco said he had no quarrel with the outcome of Price Waterhouse.

“Sex means whether you’re male or female, not whether you’re gay or straight. So if you treat all gay men and women exactly the same, regardless of their sex, you’re not discriminating against them because of their sex,” Francisco said.

Advocates say that women and LGBT people often are excluded from opportunities because they don’t look the part, despite the 1989 decision. The companies in the cases before the high court fear that a ruling in favor of the LGBT workers could put at risk all “sex-based” policies, including dress codes and bathroom assignments.

“This court, 30 years ago, said in Price Waterhouse, ‘We are beyond the day when an employer could evaluate employees by insisting that they match the stereotypes associated with their group,’” said David Cole, who argued on behalf of Aimee Stephens, a transgender woman who says she was fired because of her gender identity. “We are certainly beyond that today, as well.”

Pamela Karlan, who argued on behalf of Don Zarda and Gerald Bostock, who alleged they were fired for being gay, homed in on the sex stereotype question. She said a man fired for “marrying Bill” and a woman not fired for doing the same makes it clear that the case is sex discrimination.

Meanwhile, attorneys for the employers said the issue isn’t about sex stereotyping, but about how expanding the scope of Title VII should be the responsibility of Congress.

“Treating women and men equally doesn’t mean employers have to treat men as women. That is because sex and transgender status are independent concepts,” said John Bursch, who argued for Harris Funeral. He said that sex stereotypes are illegal but employers should be able to enforce sex-specific policies and Congress didn’t intend to protect transgender workers.

Sex Discrimination Scope

The scope of sex discrimination has expanded over the decades to include sex stereotyping, sexual harassment, and same-sex harassment. Worker advocates fear that a ruling in favor of employers could weaken Price Waterhouse, which LGBT workers have relied on to bring discrimination lawsuits long before some courts began interpreting sexual orientation and gender identity bias as sex discrimination.

The prohibitions are broadly written in Title VII, and it’s largely been up to the courts to shape how the law is enforced, said Paul Mollica, an Outten & Golden attorney in Chicago who wasn’t involved in the Supreme Court arguments.

“The courts are the only resort to get interpretation of the statute. Over the decades, the courts have developed sophisticated common law,” Mollica said.

A group of female CEOs warned the justices that women can be hindered at the hiring and promotion stages of their career if they don’t fit a certain mold and that allowing stereotypes would further exacerbate problems that lead to imbalances in the workplace. The group of about 30 C-suite female executives includes Facebook’s Chief Operating Officer Sheryl Sandberg, showrunner Shonda Rhimes, and Tela Gallagher Mathias, an executive at a consulting firm and daughter of Ann Hopkins.

“Traditional ideas and expectations about how women are expected to look and act may seem like a thing of the past—and, in some workplaces, they are,” the women wrote in a friend-of-the-court brief. “Yet, as the cases and research presented here show, nearly two decades into the twenty-first century these ideas and expectations remain powerful and continue to operate as barriers to women’s workplace advancement and success, including women of all sexual orientations and those who are transgender.”

Employers are engaging in sex discrimination if they’re importing their views of what it means to be a man or woman in the workplace, and that includes behaviors, dress, and who the person loves, said Sunu Chandy, legal director of the National Women’s Law Center, which filed a friend-of-the-court brief. Chandy said this extends to gay workers if a partner of the same sex doesn’t align with a company’s expectations.

“Everyone can agree that workers should be judged on their merit and not pieces of their identity,” Chandy said. “In this case, if the Supreme Court rolls back those protections, we are all at risk. Anyone who doesn’t fit that narrow mold of what a man or woman should do, how you dress, how you act, how you comport yourself.”

Sex-Based Policies at Risk

The employers, however, said expanding Title VII protections would open the door to require businesses to change bathroom and locker room policies and provide benefits that don’t align with their religious beliefs.

Penny Young Nance, CEO and president of Concerned Women for America, said the ramifications of expanding the understanding sex discrimination would be harmful to women and undermine the women’s movement.

“From college athletics and opportunity to privacy and safety concerns, like victims in battered women shelters, the implications are far-reaching,” Nance said. “The misguided effort of a few to redefine what it means to be a woman is regressive, not progressive. For those who disagree, I would suggest that this is an ongoing conversation in which Congress has a right to weigh in but the courts would be foolish to impose new standards via judicial fiat.”

Divided Courts

The Justice Department, which is arguing on the side of employers, likewise contends that Congress didn’t explicitly outline protections based on sexual orientation and gender identity. The workers’ advocates say the court should push for an expanded view of sex discrimination, which implicitly should include LGBT workers.

Federal appeals courts are divided on the issues of sexual orientation and to a lesser extent gender identity. Federal agencies that enforce civil rights are at odds, as well. The U.S. Equal Employment Opportunity Commission has brought cases on behalf of LGBT workers for several years and pushed for protections in federal court cases.

The number of cases filed with the EEOC alleging “LGBT-based sex discrimination” continues to rise, said Michelle Phillips, principal with Jackson Lewis in New York. The EEOC received 1,811 such charges in 2018, up from 1,762 the previous year. Those cases resulted in monetary awards of at least $6.1 million in 2018, up from $5.3 million in 2017.

Phillips said the rise in charges alleging workplace discrimination against LGBT employees comes amid reports of growing public acceptance of such workplace protections. Companies that have urged courts to protect LGBT workers from bias include big-name retailers Levi Strauss & Co. and Starbucks, tech companies Google and Microsoft, and financial giants Deutsche Bank and Morgan Stanley.

LGBT rights have taken a step forward at the state level—at least 22 states now offer explicit protections for LGBT workers. Moreover, about 90% of Fortune 500 companies have policies that prohibit discrimination on the basis of sexual orientation, and 83% prohibit discrimination based on gender identity, up from 3% in 2000, according to the Human Rights Campaign.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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