Did Employers Violate the Prohibition Against Discrimination “Because of Sex” When They Terminated Employees Because of the Employees’ Sexual Orientation?
Did Employers Violate the Prohibition Against Discrimination “Because of Sex” When They Terminated Employees Because of the Employees’ Sexual Orientation?
In each of these consolidated cases, an employer fired an employee because of the employee’s sexual orientation. In Bostock, Clayton County fired Gerald Lynn Bostock, the county’s child welfare services coordinator, after he participated in a gay softball league and recruited league members to volunteer in the county’s Court Appointed Special Advocates program. In Zarda, Altitude Express, a recreational skydiving outfit, fired skydiving instructor Donald Zarda after he told a customer that he was gay.
Bostock v. Clayton County, Georgia
Docket No. 17-1618
Altitude Express, Inc. v. Zarda
Docket No. 17-1623
Argument Date: October 8, 2019
From: The Eleventh Circuit (Bostock) and The Second Circuit (Zarda)
by Steven D. Schwinn
University of Illinois Chicago John Marshall Law School, Chicago, IL
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “because of sex.” The Supreme Court interpreted this phrase to also prohibit employers from discriminating based on sex stereotypes. This case tests whether discrimination based on sexual orientation violates Title VII’s prohibition on discrimination “because of sex,” and whether it violates the ban on sex stereotyping.
Does discrimination against an employee because of the employee’s sexual orientation violate the prohibition on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964?
In each of these consolidated cases, the employer fired the employee because of the employee’s sexual orientation. In each case, the employee sued, arguing that the action violated the prohibition against discrimination “because of sex” in Title VII of the Civil Rights Act of 1964.
The first case arose when Clayton County, Georgia, fired Gerald Lynn Bostock because he is gay. Bostock served for over ten years beginning in 2003 as an advocate for at-risk children in the Clayton County juvenile court system. During that time, he served as the county’s child welfare services coordinator, and he held primary responsibility for the Court Appointed Special Advocates program (CASA). (Under Georgia law, CASA volunteers advocate for the best interests of the child during juvenile court dependency proceedings. Some jurisdictions call such volunteers guardians ad litem, or GALs.) Bostock received favorable performance reviews for his work, and under his leadership the CASA program received the Program of Excellence Award from Georgia CASA.
In January 2013, Bostock began to participate in a gay recreational softball league. Bostock promoted participation in the CASA program among league participants. In the months that followed, Bostock’s sexual orientation and his participation in the softball league drew criticism “by one or more individuals with significant influence in the County’s decisionmaking.” In particular, “[i]n May, his sexual orientation and participation in the softball league were the subject of disparaging comments at a meeting of the Friends of Clayton County CASA Advisory Board.
On June 3, 2013, Bostock was fired. Although the County initially (and falsely) claimed that Bostock mismanaged CASA funds, it later stated that the reason for his termination was “conduct unbecoming of a county employee.”
Bostock sued, arguing that his termination violated Title VII’s prohibition on discrimination “because of sex.” The district court ruled in favor of the county, and the Eleventh Circuit affirmed.
The second case arose when Altitude Express, a recreational skydiving outfit in Long Island, New York, fired Donald Zarda because he is gay. Zarda worked for Altitude Express as a skydiving instructor. Among other responsibilities, Zarda took customers on “tandem skydives,” during which he and a customer were strapped together “hip-to-hip and shoulder-to-shoulder.” Zarda sometimes told female customers that he was gay in order “to assuage any concern they might have about being strapped to a man for a tandem skydive.” In June 2010, Zarda told a female customer that he was gay as they prepared for a tandem dive.
Several days later, Altitude Express fired Zarda. After Zarda applied for unemployment benefits, Altitude Express told the state department of labor that it terminated Zarda “for shar[ing] inappropriate information with [customers] regarding his personal life.”
Zarda filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC), alleging that Altitude Express fired him because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” The EEOC issued Zarda a right-to-sue letter, and Zarda sued in federal court, arguing that his discharge violated Title VII’s prohibition on discrimination “because of sex” and a parallel state law. The district court dismissed Zarda’s Title VII claim, and a three-judge panel of the Court of Appeals for the Second Circuit, applying circuit precedent, affirmed. The en banc Second Circuit, however, reversed. This appeal followed.
The Court consolidated Bostock’s and Zarda’s cases and will hear them together at oral argument on October 8. Editor’s Note: Donald Zarda passed away while this case was on appeal. The case is now in the name of Donald’s mother on behalf of his estate.
These cases test the breadth of Title VII’s prohibition on discrimination “because of sex,” and ask whether it covers discrimination because of an employee’s sexual orientation. In particular, the cases test whether discrimination because of sexual orientation is illegal discrimination “because of sex” under Title VII; and it tests whether discrimination by sexual orientation is a form of impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which interprets Title VII to also ban sex stereotyping. The parties wrangle over both points.
The parties in the two cases submitted their own briefs, but the arguments are substantially similar. For simplicity, let’s refer to Bostock and Zarda together as the plaintiffs, and Clayton County and Altitude Express together as the defendants.
The plaintiffs argue first that the plain text of Title VII bans discrimination by sexual orientation. They say that sexual orientation discrimination is a sex-based classification within the meaning of Title VII, and that such discrimination would not occur “but for” an employee’s sex. (They point out that an employer’s discrimination against a male employee because the employee is attracted to other men is a clear example. To see this in a different way, imagine that the plaintiffs were women: they would not have suffered the same discrimination because they were attracted to men. As a result, an employer would have distinguished between men and women on the basis of their attraction to a male.) Moreover, they contend that sexual orientation discrimination is impermissible association discrimination. And they claim that it amounts to sex stereotyping in violation of Price Waterhouse, which ruled that discrimination based on sex stereotypes violated Title VII. In particular, they contend that sexual orientation discrimination is based on generalizations about the way a person of a particular sex should behave, that is, that men should be attracted to women and vice versa.
The plaintiffs argue next that the statutory history suggests that Title VII bans discrimination by sexual orientation. They claim that Congress, in enacting the Pregnancy Discrimination Act of 1978, “unequivocally mandated a broad classification-based application of the ban on sex discrimination.” They contend that Congress ratified this broad reading and incorporated it into Title VII when it enacted the Civil Rights Act of 1991. And they claim that the Court recognized that Title VII applied broadly when it ruled in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), that Title VII barred discrimination “because of sex” and “reasonably comparable evils,” including same-sex sexual harassment. The plaintiffs contend that older cases to the contrary—those decided before Price Waterhouse, Oncale, and the Civil Rights Act of 1991—“have been undermined to the point of abrogation by these developments in the law.” More generally, based on the plain text and history, they assert that Title VII’s ban on discrimination “because of sex” sweeps more broadly than Congress may have intended in 1964—a fact that the Court has recognized time and again.
Finally, the plaintiffs argue that their reading of Title VII is consistent with, and harmonizes, the rest of the statute. In particular, they claim that Title VII’s prohibition on discrimination “because of sex” must include sexual orientation discrimination, because sexual orientation is necessarily defined at least in part by sex, and because otherwise it would conflict with the Civil Rights Act of 1991. That Act provides that an employee can establish sex discrimination by showing that sex discrimination was one motivating factor, even if the employer had other, legitimate reasons for its decision. 42 U.S.C. § 2000e-2(m). They also contend that their reading would harmonize the conflicting lower court decisions with similar facts, but very different outcomes. They say that creating an exception under Title VII for sexual orientation “would force courts to engage in a futile and incoherent effort to distinguish between claims involving sexual orientation and claims involving appropriate sex presentation and sex roles.” According to the plaintiffs, this would undermine anti-sex-discrimination protections for all workers. (For one, this reading could encourage employers to argue that their otherwise unlawful discrimination was in fact lawful, because it was based on sexual orientation, or perceived sexual orientation, and not sex.)
The defendants counter that “the original public meaning” of Title VII only prohibits employers from treating one sex better or worse than the other, and that it says nothing about sexual orientation discrimination. They claim that the public “has always understood sex discrimination and sexual-orientation discrimination as distinct concepts,” and that numerous statutes, executive actions, and judicial rulings confirm this understanding. Moreover, they contend that the plaintiffs’ reading, which shoehorns sexual orientation discrimination into sex discrimination, runs counter to the statutory construction canon that Congress does not make significant changes in a cryptic fashion. They assert that when Congress amended Title VII in the Civil Rights Act of 1991, “it adopted the uniform judicial and regulatory consensus then prevailing—that Title VII does not include sexual orientation.”
The defendants argue next that the plaintiffs’ arguments fail. They claim that the plaintiffs’ textual arguments fail because the Court has rejected the plaintiffs’ preferred “functional approach” in a similar context. Moreover, they contend that the plaintiffs wrongly compare their treatment of a gay man to their treatment of a straight woman in arguing that Title VII covers sexual orientation discrimination. Instead, they assert that the Court should compare their treatment of a gay man to their treatment of a lesbian woman. Because they would treat the two the same (by firing them both), there is no sex discrimination. (In this way, the defendants say that the plaintiffs’ “but for” test rigs the result in the plaintiffs’ favor, and therefore cannot be the right way to read the statute.)
The defendants argue that the plaintiffs’ sex-stereotyping claims also fail. They say that Price Waterhouse did not recognize a free-roaming sex-stereotyping claim (based on a stereotype that members of one sex should be attracted to members of the other sex, as here); instead, it recognized a sex-specific stereotyping claim (based on a stereotype that women should not be aggressive). They contend that under Price Waterhouse the plaintiffs have to use evidence of sex-specific stereotyping (which they did not use), and that the plaintiffs have to show that one sex was treated better than the other (which they could not show).
The defendants contend that the plaintiffs’ claim based on associational discrimination also fails. They say that the plaintiffs wrongly analogize sexual orientation discrimination to a ban on interracial marriage. But they claim that this analogy does not work, because sexual orientation discrimination does not disadvantage or favor one sex over the other.
Finally, the defendants argue that the plaintiffs’ reading of Title VII would result in intolerable consequences. They say that the plaintiffs’ reading would “mandate a sex-blind workplace,” because it would remove every distinction based on sex, including separate-sex restrooms, locker-rooms, fitness tests, and dress codes. They claim that the plaintiffs’ reading would also “imperil religious freedom” by threatening the practices of faith-based organizations. They argue that if Title VII is to cover sexual orientation discrimination, Congress, not the Court, should make the change—something that Congress has repeatedly declined to do.
These cases and their companion, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, test the reach of Title VII’s ban on discrimination “because of sex,” and whether that ban extends to discrimination on the basis of transgender status and sexual orientation. While the cases have some technical differences, they have very similar implications.
Most obviously, these cases matter deeply to the estimated 11.3 million LGBTQ adults in the United States. According to 21 states and the District of Columbia as amici, employment discrimination against LGBTQ individuals runs rampant. Forty-two percent of gay, lesbian, and bisexual individuals have faced employment discrimination based on their sexual orientation; ninety percent of transgender individuals have experienced harassment or mistreatment in the workplace; gay and bisexual men earn eleven to sixteen percent less than similarly qualified heterosexual men; and the unemployment rate for transgender individuals is three times the national average.
But at the same time, only 21 states and the District of Columbia expressly ban discrimination on the basis of sexual orientation and gender identity by statute or regulation. A few others provide some form of protection by way of agency interpretation or court ruling. That means that LGBTQ individuals lack protection against employment discrimination in about one-half of the states. These individuals’ only protection is Title VII. If the Court declines to read Title VII to protect LGBTQ individuals, their only protection against employment discrimination will go away.
On the other hand, the employers, the government, and their amici argue that the plaintiffs’ reading of Title VII would so “expand” the concept of “sex” that employers would not know how to comply, and courts would not know how to enforce it. Moreover, the defendants and their amici argue that the plaintiffs’ reading of Title VII could mean the end of things like sex-specific restrooms and locker-rooms, and this could actually undermine Title VII by threatening other sex-specific practices and institutions that are designed to provide an equal playing field between men and women.
There are a couple things to watch. First, by relying on sex-stereotyping claims, the plaintiffs in these cases give the Court a way to rule in their favor without necessarily reading “sex” to include sexual orientation or transgender status. But it’s not clear that this approach will attract any justice who isn’t already inclined to read “sex” that way and thus rule in favor of the plaintiffs. More bluntly, it’s not clear that this approach will attract any of the traditional conservatives on the Court.
Next, in response to the plaintiffs’ sex-stereotyping claims, the employers and the government rely heavily on an “original understanding” argument—that Title VII’s ban on discrimination “because of sex” was originally understood to ban only discrimination that disadvantages a person of one sex as compared to a similarly situated person of the opposite sex. This argument is designed to undermine the plaintiffs’ sex-stereotyping claims, which are based on Court interpretations of Title VII long after the statute was originally enacted. But it’s not clear that the employers’ original understanding arguments will attract any justice who isn’t already inclined to read Title VII to include a ban on sex-stereotyping. More bluntly, it’s not clear that this approach will attract any traditional progressives on the Court.
If all this is right, we can expect that most or all of the justices will come to these cases already leaning (probably heavily) one way or the other. And when the decisions come out, we can expect a sharply—and ideologically—divided Court.
Steven D. Schwinn is a professor of law at the University of Illinois Chicago John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at email@example.com or 312.386.2865.
PREVIEW of United States Supreme Court Cases 47, no. 1 (October 7, 2019): 19–23. © 2019 American Bar Association
In Support of Employees—Gerald Lynn Bostock and Melissa Zarda
In Support of Employers—Altitude Express, Inc. and Clayton County, Georgia