As we previously wrote, earlier this year the Supreme Court agreed to hear three closely watched cases which could decide once and for all whether Title VII of the Civil Rights Act protects employees from discrimination based on sexual orientation and identity.
The cases are Altitude Express v. Zarda; Bostock v. Clayton County, Georgia; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. The first two cases involve alleged discrimination based on a worker’s sexual orientation, and the third case involves discrimination based on gender identity. All three cases pose one giant question for the Supreme Court: are transgendered and gay employees protected from discrimination under Title VII?
Title VII
Among other things, Title VII protects workers from discrimination at work and in places of public accommodation on the basis of their sex. “Sex” has historically been identified as a person’s gender as male or female. As society has evolved and LGBT issues have become more mainstream, there has been an ever-growing question of whether “sex” should really include one’s sexual orientation or identity.
Those in Favor of Expanding Title VII
July 3 was the deadline to file amicus briefs in favor of expanding Title VII. Amicus briefs are documents filed in appellate court cases by individuals, entities, or groups with a strong interest in the subject matter at hand. Amicus briefs are filed in an effort to advise the court of additional information or arguments the court might wish to consider when making its decision. Over 200 companies, including big names like Google and Amazon, filed an amicus brief in favor of an expansive reading of Title VII, urging a narrow interpretation of the statute would have “wide-ranging, negative consequences for businesses, their employees, and the U.S. economy.”
Other supporters argued a ruling in favor of LGBT workers would provide valuable certainty to businesses operating in a wildly unsettled area of the law. One brief also simply argued the plain meaning of Title VII protects gay and transgender workers. According to that brief, if a man is fired for being gay, he is essentially being fired for being a man who is sexually attracted to other men, yet, if he was a woman with the same sexual preference, he would not have been fired. Since the text of the statute protects from discrimination on the basis of sex, the brief argues a man who prefers men should be protected as the only difference between him and a woman who prefers men is his sex.
Other supporters who filed briefs include over 150 current members of Congress, as well as several discrimination law scholars, various advocacy groups and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).
Those Against Expanding Title VII
The deadline for opponents to file amicus briefs was August 23, and many opponents likewise took the opportunity to make their case. Among the opponents who filed briefs were several congressional lawmakers who claimed it is in Congress’ purview, not the courts’ to expand (or refrain from expanding) Title VII protection. Opponents also argued to expand Title VII in such a way flies in the face of Congressional intent – which they claim was to protect women. Also among the opponents were a number of companies expressing concerns about what this would mean for their business. Among those concerns were what to do with long standing personnel policies that don’t account for sexual orientation and whether a shift in the law would subject them to liability for decisions made under those policies.
Another opponent argued expanding Title VII would have repercussions in other areas beyond employment and places of public accommodation. In its brief, the Independent Women’s Forum raised concern that an expansion of Title VII to cover transgendered people will lead to them also being protected under Title IX, which bars sex discrimination in education. The brief argued allowing transgender women to compete in women’s sports would result in less opportunities for biological females to participate in those sports and may put them at a competitive disadvantage.
Other opponents include a number of Christian colleges, conservative lobbying organizations, and religious advocacy groups.
The Take Away
The law has long been unsettled on LGBT issues. Circuits have been split on this issue for years. Since the Supreme Court made the decision to hear these cases, we will soon know once and for all know where the law stands on employment discrimination rights for gay and trans workers. The Court is set to hear oral arguments on October 8.
Keep an eye on this – implications can be huge. We will continue to monitor these cases and provide you with important updates as they progress.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
