The United States Supreme Court started its new term in October, and its task list includes determining what constitutes sex discrimination in the workplace and whether sexual orientation, gender identity and transgender status are protected under the law. Even though the Supreme Court legalized gay marriage in 2015, employees can still be terminated from their employment in many parts of the country for their sexual orientation.
Approximately 11.3 million people in the United States identify as gay, lesbian, bisexual or transgender. Lower Courts have offered conflicting decisions on whether federal law prohibits sex discrimination for claims related to nontraditional sex discrimination. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 prohibits discrimination because of sex. Although the law is wide-ranging, lesbian, gay, bisexual and transgender individuals are not protected by this law if discriminatory practices by an employer are related to perceived sexual preferences. The law as written does not specifically indicate that protection includes individuals in the workplace who have sexual orientation or gender identity. This lack of clarification has forced the lower Courts to attempt to determine whether the term “sex” as stated in the federal statute means more than simply female or male. This has resulted in differing decisions on the issue of what sex discrimination means under federal law.
Cases in the Courts
There are two cases being consolidated for hearing by the United States Supreme Court this fall that address these issues. Bostock v. Clayton County, Georgia (Docket Number 17-1618) involves a Child Service Coordinator for the county juvenile Court who was terminated from his employment. Bostock was also in addition to his employment, involved in a gay recreational softball league. In June 2013, Bostock’s employment was terminated for “conduct unbecoming of a county employee.” Bostock denied he engaged in any misconduct and alleged he was terminated for his sexual orientation in violation of Title VII. Sexual orientation varies and is not dependent on gender identity. The lower Court dismissed Bostock’s case holding that Title VII did not afford protection under the law for sexual orientation.
The second case is Altitude Express, Inc. v. Zarda (Docket Number 17-1623), in which a now-deceased sky diving instructor alleged that he was terminated from his employment based on his sexual orientation. Zarda alleged that he was discriminated for failing to conform to male sex stereotypes. The lower court denied Zarda’s claim and on appeal, the Second Circuit Court of Appeal vacated the lower court’s decision holding that sexual orientation discrimination is a subset of sex discrimination under Title VII.
Also being heard on the same day in a separate hearing before the Supreme Court is R. G. & G. R. Harris Funeral Homes, Inc. v. EEOC (Docket Number 18-107). Stephens was the funeral home director who was terminated after informing the owner that she was transgender. Transgender is defined as a person whose sense of personal identity or gender does not correspond to the sex they were assigned at birth or does not conform to gender stereotypes. The lower court held that Stephens was discriminated under Title VII therefore giving protection to transgender individuals under the law.
Precedent in Gender Discrimination
All cases look to the prior decision rendered by the Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In this case, Hopkins was denied a promotion to partner based on her lack of interpersonal skills, masculine behaviors and use of profanity in the workplace. A supervisor told her that she would be more likely to be reconsidered for partnership if she acted more feminine. Hopkins filed a lawsuit alleging discrimination based on gender stereotyping. In 1989, the United States Supreme Court held that gender stereotyping is an actionable claim of sex discrimination.
The United States Supreme Court will be asked to determine whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. 2000e-2(a)(l), meant “gender identity”, “sexual orientation” and included “transgender status” when Congress enacted Title VII in 1964.
Alex Gertsburg is a managing partner at Gertsburg Licata. He may be reached at (216) 573-6000 or at [email protected].
Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.
