By:  Amy Epstein Gluck

We will soon see—at least under federal law.

What am I talking about?

Tomorrow, October 8, the Supreme Court of the United States (SCOTUS) will do what it does when states and federal courts and agencies are divided on an important issue: it will hear arguments on three cases in order to decide whether discrimination based on sexual orientation, gender identity, gender expression, or transgender status constitutes discrimination “on the basis of sex.”

I, for one, am excited to hear these arguments!

Let’s Take A Look At What Title VII Prohibits

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination or harassment “on the basis of sex.” This traditionally meant that women shouldn’t be treated worse than men in the workplace and that men couldn’t be treated worse than women.

But, over time, the law has expanded, as the law tends to do. Now, sex stereotyping—how a person should look, dress, and act— is a form of sex discrimination, equally prohibited by Title VII. Sexual harassment is another form of sex discrimination, and, of course, it is also unlawful under federal law (along with quid pro quo harassment) if severe or pervasive enough to constitute a hostile work environment.

So What’s The BD?

The big deal is that the Department of Justice and various federal courts have taken the position that Title VII does not cover discrimination against an individual because of person’s sexual orientation or gender identity or expression because the law does not explicitly say so.

Yet, in 2015, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII and other anti-discrimination laws, determined that discrimination against LGBTQ individuals was illegal. In fact, the EEOC includes LGBTQ rights in its 2017-2020 Strategic Enforcement Plan. (Click here for more on the agency’s strategic enforcement plans.)

Also in 2015, SCOTUS decided the 5-4 landmark decision, Obergefell v. Hodges, determining that the states could not ban same-sex marriage. While same-sex marriage became legal, no law expressly prohibited employers from terminating an employee due to that person’s sexual orientation or gender identity.

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Hence the saying that a same-sex partner could be married on Sunday and fired on Monday.

States are divided on this issue too. Some states prohibit discrimination based solely on sexual orientation, some only on transgender status or on gender identity, and some state laws ban discrimination based on sexual orientation, gender identity, and gender expression. Some states differentiate between public employers and private employers.

So What Will Tuesday’s Arguments At The Supreme Court Entail?

Let’s consider the cases about which The Supremes will hear arguments and decide:

(I do wonder if RBG will be the lead singer on this one.)

First, there is the funeral home employer who fired employee Aimee Stephens after she wrote an impassioned letter to her colleagues explaining that after being trapped in the wrong body for years (gender dysphoria) and prodigious therapy, she would begin transitioning to female by coming to work in female clothing in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.

Soon thereafter, the funeral home fired her, and she sued for discrimination.

The U.S. Court of Appeals for the Sixth Circuit ruled in Stephens’s favor and determined that Title VII prohibited discrimination against employees based on their gender identity or transgender status. The Sixth Circuit explained:

It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.

Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex. …

 “[D]iscrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”

Next, Gerald Bostock alleges that his county employer fired him once they learned he joined a gay softball league in Bostock v. Clayton County. The Eleventh Circuit only stated:

Title VII prohibits employers from discriminating against employees on the basis of their sex. 42 U.S.C. §2000e-2(a). This circuit has previously held that “[d]ischarge for homosexuality is not prohibited by Title VII.”

(cites omitted). Literally, this was a 3-page, unsigned opinion, providing no detail or further rationale for the ruling.

Finally, in the third case, skydiver and instructor Donald Zarda claimed, in Zarda v. Altitude Express, Inc., that he was fired when he joked to a woman who he was about to strap himself to in order to take her on a tandem skydive “Don’t worry, I’m gay.” Zarda has since died, but his estate is pursuing the case.

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The U.S. Court of Appeals for the Second Circuit said “employer, that’s illegal!” and explained that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” Moreover, the court rejected an argument based on semantics (see pp. 23-24 of the opinion here) in holding that firing an employee because the person is “gay” is a form of sex discrimination:

The employer’s failure to reference gender directly does not change the fact that a “gay” employee is simply a man who is attracted to men. For purposes of Title VII, firing a man because he is attracted to men is a decision motivated, at least in part, by sex. More broadly, were this Court to credit amici’s argument, employers would be able to rebut a discrimination claim by merely characterizing their action using alternative terminology. Title VII instructs courts to examine employers’ motives, not merely their choice of words

So, you see why I’m geeking out over this—there are multiple arguments at issue here.

But Title VII Does Not Prohibit This Type of Discrimination! Yes, And It Doesn’t Mention “Stereotyping” or “Harassment” Either.

More than seventy amicus briefs have been filed with SCOTUS, and, honestly, I’m totally psyched to hear every word of every argument. This is like the black Friday or the season finale of employment law. (Don’t judge me, I don’t get out enough.)

Title VII never mentions the term “sexual harassment” or “sex stereotypes.”

And yet.

In 1986, SCOTUS held, for the first time though not the last time, that a supervisor’s sexual harassment of an employee at work is illegal. In Meritor Savings Bank v. Vinson, Justice William Rehnquist (writing for the Court) ruled that ”when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminates’ on the basis of sex.”

The scope of Title VII continued to expand. In 1989, in Price Waterhouse v. Hopkins, SCOTUS determined that Title VII prohibited sex stereotyping and ruled

an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender…An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and  out of a job if they do not. Title VII lifts women out of this bind.

Then, in 1998, Oncale v. Sundowner OffshoreServices, SCOTUS held that Title VII prohibits same-sex harassment, which is nowhere mentioned in Title VII and certainly not an original intended target of Title VII:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

What Is Clear, Employers:

The states that prohibit discrimination based on sexual orientation or gender identity or expression, including transgender status, are not uniform — some protect only gender identity or transgender status, and some differentiate between public and private employment so this issue is ripe for SCOTUS consideration. And, Title VII already bans sexual harassment, same-sex discrimination and harassment, and sex stereotyping.

Many many employers already have policies that prohibit discrimination against LGBTQ workers, whether it’s because they are in states that ban such discrimination or because they seek to promote eradication of such discrimination and promote equality regardless of sexual orientation and gender identity.

Regardless of how SCOTUS rules on the legal arguments advanced this week, as employers, why not treat all people equally regardless of who they love or how they see themselves?