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Stripping LGBT Workplace Rights to Have Wide Effect, Lawyers Say

June 26, 2019, 8:22 PM

If the U.S. Supreme Court rolls back federal protections against sexual orientation and gender identity bias, there would be wide ripple effects in the workplace and beyond, attorneys representing LGBT workers argue.

Creating a “sexual orientation exception” to Title VII of the 1964 Civil Rights Act would unfairly deny lesbian, gay, and bisexual workers protections against discrimination and stereotyping that other workers possess, attorneys for the American Civil Liberties Union told the high court in a June 26 brief. It also would create a defense for cases arguing sex discrimination, and clash with previous court rulings that protect against sex stereotyping.

They also argued transgender workers should clearly be protected under the statute, and efforts to ignore this population could eliminate protections in other areas, including housing and education.

The Supreme Court will test the scope of sex discrimination under Title VII in a trio of cases: Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and RG and GR Harris Funeral Home v. EEOC. At issue in Zarda and Bostock is whether sexual orientation should be considered sex discrimination. Harris Funeral surrounds a transgender worker and whether gender identity should be protected.

Advocates for the workers turn to previous Supreme Court rulings, which have further clarified sex discrimination under Title VII. The court previously has found that protections should extend to gender stereotypes, as well as same-sex harassment.

The issue of LGBT protections has divided courts and federal agencies. The U.S. Equal Employment Opportunity Commission has pushed for protections in recent years. The Trump administration’s Justice Department, however, has argued that sexual orientation and gender identity aren’t explicitly written into Title VII. Coalitions of advocacy groups and big business, warring state coalitions, and religious groups have weighed in on the issue in recent years as it’s played out in courtrooms across the country.

Briefs from the employers and agencies in the cases are due to the court in August and September.

ACLU: Workers Will Be Harmed

It would be harmful to take away protections for transgender and gay workers, said ACLU attorney John Knight, who represents Aimee Stephens, a transgender worker who says she was unlawfully fired because of her gender identity. Knight said a different interpretation of the statute would undermine legal principles that have been applied throughout the years.

At least five federal appeals courts say transgender workers should be protected under Title VII’s sex discrimination provisions. In the case of sexual orientation, the U.S. Court of Appeals for the Seventh Circuit and Second Circuit in recent years created a stark divide in finding that gay, lesbian, and bisexual workers have a right to sue under federal law.

“This isn’t about creating protections that haven’t existed,” Knight said. “This is about the employer, and all employers, asking the court to take away protections that courts have long agreed exist.”

Beyond employment, Knight said other federal statutes that protect against discrimination in housing and educational institutions could be affected by a high court ruling in the employer context. The Trump administration has pushed to eliminate protections for transgender individuals under those statutes. Courts often use Title VII guidance to make rulings in Title IX and Fair Housing Act cases.

The ACLU represents workers in Zarda and in Harris Funeral. The EEOC originally brought the discrimination case against Harris Funeral on behalf of Stephens. The funeral home said Stephens violated its uniform policy, but the Sixth Circuit sided with the EEOC.

The ACLU intervened during the Trump administration, fearing that the government would no longer represent the views of Stephens. The EEOC doesn’t argue before the Supreme Court, but instead the government is represented by the Justice Department. The department urged the court not to take the transgender case, unless it also took the sexual orientation issue. It made clear in its brief to the court that it didn’t agree with the EEOC’s interpretation of Title VII.

“This court has long recognized that discharging an employee because of the employer’s sex-based stereotypes violates Title VII. There is no basis for excluding transgender people from that protection, and any attempt to do so would undermine Title VII’s protections for all workers,” the attorneys wrote in the brief to the high court in Harris Funeral. “It is irrelevant whether the Congress that enacted Title VII contemplated its application to transgender employees. Statutes must be interpreted based on their text rather than on an assessment of their originally anticipated applications.”

Skydive instructor Donald Zarda claimed his former employer Altitude Express fired him because he was gay. Zarda died in a skydiving accident and is represented by his estate. The full Second Circuit sided with Zarda, overturning the court’s precedent and lining up with the Seventh Circuit. During arguments, the EEOC and the DOJ argued on opposite sides. Gerald Bostock lost a similar argument in the Eleventh Circuit, and likewise appealed to the Supreme Court.

“Firing a man because he is attracted to other men is like refusing to hire a woman because she has school-age children, failing to promote a woman because she is too ‘macho,’ or countenancing the sexual harassment of a man who is perceived by his coworkers to be vulnerable,” ACLU attorneys wrote in the brief to the high court.

The cases are R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, U.S., 18-107, Respondent Stephens’ brief filed 6/26/19, Gerald Lynn Bostock v. Clayton County, Georgia, U.S., 17-1618, Respondents opening brief filed 6/26/19 and Altitude Express, Inc. v. Melissa Zarda, as Executor of the Estate of Donald Zarda, et al., U.S., 17-1623.

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; Terence Hyland at thyland@bloomberglaw.com