By: Samuel Turner

During a case reviewing conference on January 11, 2019, the United States Supreme Court (SCOTUS) reviewed a trio of cases addressing whether Title VII of the Civil Rights Act of 1964 provides protection from workplace discrimination to LGBTQ+ individuals.1SCOTUS had originally scheduled the trio’s review for a conference on January 4, but did not review them on that date.2By relisting the cases for the January 11thconference, the court signaled a high likelihood of granting certiorari for at least one of the cases. Should four justices of the court agree to hear the case, it will set the stage for a resolution of one of the most hotly contested issues concerning LGBTQ+ rights in the United States.

 

The first case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, U.S. (6thcircuit), deals with a funeral home worker’s undisputed discrimination from her Baptist employer as a result of her announcement of her transition from male to female.3In the second case, Altitude Express, Inc.  v. Zarda (2ndcircuit), a gay skydiving instructor was fired after a customer complained about his sexual orientation, among other things.4Finally, in Bostock v. Clayton County Board of Commissioners (11thCircuit), a gay employee alleged that he was fired after his employer discovered his sexual orientation and association with a gay softball league.5All three cases pose the same question: does an individual’s sexual orientation and/or gender identity fall under a protected class under Title VII of the Civil Rights Act of 1964?

 

Proponents of extending workers’ protections to LGBTQ+ individuals have largely fought an uphill battle, facing assertions from numerous federal appellate courts and the Trump administration that have mandated a limited and textualist interpretation of “sex” under Title VII.6However, the recent Zarda case provided the first glimmer of hope for LGBTQ+ advocates, when an en banc panel of 2ndCircuit judges overruled its own precedent and held in favor of Donald Zarda.7The Zarda case was a landmark win for LGBTQ+ advocates, and the resulting circuit split provided the opportunity LGBTQ+ advocates have been waiting for to reach the Supreme Court.

 

In the past, a popular argument in favor of extending Title VII rights to LGBQT+ individuals asserted that sexual orientation and gender identity were a type of “sub-class” under what should be an extended definition of “sex,” which Title VII explicitly includes as a protected class against workplace discrimination. However, arguments to create additional sub-classes for members of the LGBTQ+ community under the “sex” class have largely failed. Now, with SCOTUS leaning firmly conservative after Brett Kavanaugh’s confirmation in November, it seems that arguments to extend the meaning of “sex” under Title VII will most likely be unsuccessful when heard by a majority of conservative, textualist judges.

 

Instead, the principle argument in favor of extending protections to LGBTQ+ workers will most likely mirror the arguments that the majority opinion in Zarda relied upon. In Zarda, the majority held that while sexual orientation does not constitute an entirely new class, separate from “sex”, it does inherently fall under the “sex” class.8The majority opinion offers three major arguments in support of a finding that sexual orientation discrimination constitutes discrimination based on “sex”: 1) because “sexual orientation is a function of sex”; 2) because sexual orientation discrimination is almost invariably rooted in stereotypes about men and women”; and 3) because of the associational theory, which the court stated flows from “an employer’s opposition to association between particular sexes, and thereby discriminates against an employee based on their own sex.”9

 

Should SCOTUS grant certiorari for any of these cases, the stage will be set for a showdown in the Supreme Court to finally resolve this hotly contested issue. SCOTUS could hear the case as soon as in the middle of 2019, or it could decide to hear the cases during its next term.10Additionally, the new Democrat-controlled House could provide political pressure from other angles in hopes of passing legislation extending workers’ rights to LGBTQ+ individuals. In the end, all of these advancements suggest that 2019 could be a landmark year for LGBTQ+ rights.11

 

 

  1. https://news.bloomberglaw.com/daily-labor-report/supreme-court-signals-interest-in-lgbt-job-bias-cases
  2. Id.
  3. Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018)
  4. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018)
  5. Bostock v. Clayton Cty. Bd. of Commissioners, 723 F. App’x 964 (11th Cir. 2018)
  6. https://www.fordharrison.com/department-of-justice-weighs-in-title-vii-does-not-prohibit-gender-identity-discrimination
  7. https://slate.com/news-and-politics/2018/02/second-circuit-rules-title-vii-bars-anti-gay-discrimination-in-zarda.html
  8. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018)
  9. Id.
  10. https://news.bloomberglaw.com/daily-labor-report/supreme-court-signals-interest-in-lgbt-job-bias-cases
  11. https://www.thedailybeast.com/believe-it-or-not-government-might-improve-lgbt-rights-in-2019

 

 

 

 

 

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.