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LGBT Ruling Paves Way for Bathroom, Religious Battles at Work

June 16, 2020, 9:30 AM

The U.S. Supreme Court’s decision that federal anti-discrimination protections apply to LGBT workers will likely tee up further legal disputes involving religious liberties and workplace policies over bathrooms and dress codes.

In a 6-3 ruling Monday, the justices resolved a question that once divided appeals courts, federal agencies, and coalitions of states about whether lesbian, gay, bisexual, and transgender workers could sue their employers under Tile VII of the 1964 Civil Rights Act that prohibits bias based on sex.

But the high court left open several LGBT-related issues that could be addressed in future litigation, such as whether employers can have bathrooms, locker rooms, or dress codes segregated by sex. It also didn’t tackle whether religion can be used to bypass discrimination laws—a dispute that the justices already have agreed to hear next term in a case involving a Catholic foster care agency and same-sex couples.

Justice Neil Gorsuch, who penned the majority opinion, said the court’s ruling didn’t “prejudge” those issues or concerns that the decision would have potential consequences that sweep beyond Title VII and into other federal and state laws.

“The court took pains to try to limit the scope of this decision,” said Todd Anten, a New York partner with Quinn Emanuel Urquhart & Sullivan. “But you can bet people will try to leverage this decision from both sides. People supportive will say there will be massive consequences beyond Title VII, while those who aren’t will say it’s limited.”

Attorneys say the interpretation of Title VII could influence litigation for similarly constructed laws in the education and health-care spheres.

“This is a warning to employers that they need to base employment decision on the capacities of employees not their sexual orientation or gender identity,” said Elizabeth Cooper, a professor at Fordham Law School who specializes in sexuality issues. “I don’t see how it doesn’t have reach beyond the workplace.”

Dress Codes, Bathroom Policies

The court settled a trio of cases in its ruling—Altitude Express v. Zarda, Bostock v. Clayton County, GA, and R.G. & G.R. Harris Funeral v. EEOC.

In them, the late Aimee Stephens said she was fired by Harris Funeral after she told her boss she would come to work presenting as a woman and wear a skirt required of female employees. Stephens, who was transgender, previously presented as a man and wore slacks per the company’s dress code. Gerald Bostock accused his government employer of firing him after he revealed he played on a gay softball team. Don Zarda, a deceased skydiver, also alleged that his employer, Altitude Express, fired him after he told a customer he was gay.

Attorneys who represented the employers in the cases argued that Title VII’s prohibition of sex discrimination didn’t include sexual orientation and gender identity. Supporters of that view have said employers would face difficulties enforcing their dress codes and bathroom policies if the justices ruled in favor of the LGBT workers.

For transgender workers, in particular, policies that deny them the right to live by their identities—including what they wear, what pronouns they prefer when people address them, and what restrooms they use—already are used in discriminatory ways, advocates say.

The bathroom issue was historically a way in which opponents of civil rights and LGBT rights attempted to resist allowing individuals to participate in society, said Diana Flynn, litigation director of Lambda Legal. Policies that force workers to use restrooms based on the sex they were assigned at birth can also reinforce stereotypes, she said.

Many large employers already provide protections for LGBT workers. But smaller or regional employers may not have policies on bathrooms or locker rooms, said Shannon Farmer, an attorney with Ballard Spahr, who represents employers. Grooming standards or dress codes also could create legal clashes, she said.

“Those are the kind of things that aren’t completely directed at employers but have a direct effect,” Farmer said.

Religion as Liability Shield

Religious groups are expected to continue litigation where LGBT rights clash with religious liberties.

The issue cropped up in Harris Funeral, with the U.S. Court of Appeals for the Sixth Circuit ruling that the funeral home’s owner couldn’t sidestep Title VII based on his religious beliefs. But the Supreme Court didn’t review that question.

There will be tension between religion and LGBT rights as the doctrines interact with each other, said Selendy & Gay partner David Flugman, who leads the firm’s diversity and inclusion efforts and whose practice has focused on the advancement of LGBT rights.

“I think it will be interesting to see religious objections to LGBT employees,” Flugman said. “There is tension between where does your right to free exercise end and my right not to be fired because you disapprove of what I do? There’s a point where one gives way to another. The question is where that point lies.”

Luke Goodrich, vice president and senior counsel at the conservative Becket Fund for Religious Liberty, previously told Bloomberg Law a court ruling in favor of LGBT protections would “raise a host of First Amendment and other constitutional issues.” He said such an outcome could infringe on the ability of religious organizations like hospitals, homeless shelters, and schools to continue to provide services consistent with their religious beliefs.

Right to Sue Secured

Even though the Supreme Court cleared the way for LGBT workers to sue their employers, it doesn’t necessarily mean an impending wave of employment litigation, attorneys say.

About 90% of Fortune 500 companies already 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. At least 21 states and the District of Columbia also prohibit LGBT discrimination.

Even when the federal law remained unsettled, LGBT workers in recent years brought cases of hiring or firing discrimination. Mark Horton, whose case is before the Eighth Circuit, wanted to sue Midwest Geriatric Management because he said his job offer was rescinded after he mentioned his husband.

Other suits include one brought by Jennifer Fletcher in a federal court in Alaska, arguing that her employer violated Title VII by forcing her to pay out-of-pocket expenses when she was transitioning from male to female. Amazon also was hit with a lawsuit in Kentucky when a transgender woman allegedly faced threats and slurs from coworkers and claimed supervisors didn’t take action to stop the abuse.

“I do expect LGBT workers will file more discrimination cases after today’s ruling,” said Charlotte Garden, a law professor at Seattle University School of Law. “But in addition to its nationwide geographic reach, today’s decision will also elevate the idea that LGBT discrimination is illegal in the public consciousness. That could be an additional reason that more workers might decide to try to enforce their rights.”

Employment lawsuits surrounding sexual orientation and transgender discrimination can be difficult for employers to litigate, said Jay Wallace, an attorney with Bell Nunnally & Martin in Dallas. He said it’s a “nuanced area” and compared it to pregnancy and religious discrimination claims, where the employer might not necessarily know that someone has that protected characteristic.

Greg Nevins, senior counsel at Lambda Legal, doesn’t necessarily expect a flood of new cases filed, as a result of the ruling. He said it’s key, though, that workers know they “can step right up and take on this kind of case and not worry about getting thrown out of court even when discrimination happens.”

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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