Today, the Supreme Court will hear argument in three cases that could have monumental impact on federal anti-discrimination law. The Court will consider whether Title VII’s ban on sex discrimination encompasses discrimination on the basis of sexual orientation or gender identity. The sexual orientation question is raised by Bostock v. Clayton County and Zarda v. Altitude Express, which have been consolidated; the transgender discrimination question is raised by R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.
Without a crystal ball, it is impossible to predict how these cases will be decided or on what grounds. But the consequences of a ruling in either direction are predictable—over 10 million adults in this country will continue to be unfairly vulnerable to discrimination as they largely have been to date, or they will swept under an umbrella that provides important employment protections. And if the Court rules against these protections, there could be significant adverse consequences for all women, as well, who have greatly benefited from the development of a broad understanding and prohibition of gender stereotypes in the workplace. But on the day of oral argument, it’s important to consider just how we got to this point.
The Early Years
Title VII of the Civil Rights Act of 1964 is the centerpiece of federal anti-discrimination law. It prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. Sexual orientation discrimination is not included in the list; nor is gender identity.
The concept of sex discrimination was hammered out by a series of Supreme Court rulings over many years. The Court held, for example, that discrimination against a subset of one sex, such as a hiring ban on women with preschool age children, constituted unlawful sex discrimination. It also ruled that discrimination on the basis of differences in average group life spans (women live longer than men, as a group) was unlawful as well. It held that sexual harassment was a form of intentional sex discrimination. These decisions were the product of the Court’s grappling with a hard question: What does it mean to discriminate on the basis of sex?
Federal courts were also asked to consider whether that same ban on sex discrimination included sexual orientation discrimination. The standard early answer was no, but in part because the courts did not seriously engage with the question. Perhaps the most well-known of the early rulings is from the Ninth Circuit in DeSantis v. Pacific Telephone & Telegraph (1979). These rulings tended to focus on lack of congressional intent, with little by way of analysis about the nature of sex or sexual orientation discrimination (and the obvious ways in which they might be part and parcel of the same type of stereotypical thinking and decisionmaking).
At the federal level, it matters whether Title VII protects against sexual orientation discrimination because there is no other wide-ranging source of protection. The only direct prohibition on sexual-orientation discrimination comes from Executive Order 13087, issued in 1998 by President Bill Clinton, which bans such discrimination in the civilian federal workforce; this order was a long overdue response to a long history of harsh and overt discrimination against lesbian and gay workers by the federal government (explored in some detail here).
Inroads for Sexual Orientation Discrimination Claims: Sex Stereotyping and Sexual Harassment
Even though the early rulings uniformly held that sexual orientation discrimination is not covered by Title VII, employees who have suffered discrimination because of their sexual orientation have nonetheless sometimes prevailed. Title VII prohibits employment actions taken “because of sex.” There have been two types of successful claims drawing on this language: discrimination based on sex stereotyping, and same-sex sexual harassment. These claims are made possible by two key Supreme Court cases.
First, the Supreme Court ruled in Price Waterhouse v. Hopkins (1989), that reliance on sex-role stereotyping can be an actionable form of employment discrimination. In that case, the Court held that a woman was a victim of sex discrimination when her employer denied her partnership in an accounting firm at least in part because she was insufficiently “feminine” in the way she dressed and conducted herself. That decision fueled different types of claims, including ones by effeminate gay men and masculine lesbians that the discrimination they experienced was sex, rather than sexual orientation, discrimination.
Second, in Oncale v. Sundowner Services (1998), the Court considered a claim of same-sex harassment. The federal appellate court had ruled that such a claim could never be cognizable under Title VII, regardless of the circumstances, because it could not satisfy the “because of sex” requirement in the statute. But the Supreme Court reversed, holding that the requirement might be met in one of three ways: (i) with evidence of the perpetrator’s homosexuality; (ii) with evidence that the perpetrator in fact targeted only members of one sex; or (iii) with evidence that the harassment took the form of gender-role policing—à la Price Waterhouse—to punish an employee for failing to live up to traditional gender norms. Oncale has both reinforced the use of Price Waterhouse in sexual orientation claims and fueled separate claims for harassment rooted in homosexual desire or gender-targeted bullying.
Price Waterhouse and Oncale gave teeth to some sexual orientation discrimination claims, but cut others off at the knees. Gays and lesbians who conform to gender-role stereotypes are less protected than those who transgress expectations; but those who transgress too extremely are sometimes left unprotected because it raises “bootstrapping” alarms for courts—the problem of using a cognizable cause of action to remedy a type of discrimination that is (supposedly) lawful.
The Turning Tides
Although the early cases all ruled against LGBT protection under Title VII, more recent opinions have largely come out the other way. In 2015, the EEOC first took the position that sexual orientation discrimination is sex discrimination. In that case (discussed here), Complainant v. Foxx, a gay air traffic controller was not selected for a permanent position because, he alleged, of his sexual orientation. The EEOC concluded that this was a cognizable claim under Title VII.
In 2012, the EEOC had reached a similar conclusion in a transgender discrimination case. As discussed in more detail here, the EEOC concluded in Macy v. Holder that discriminating against a person who has transitioned from one sex to the other or who assumes an appearance contrary to birth sex is a form of sex discrimination. Prior to that ruling, transgender individuals had met with success in court using the Oncale and Price-Waterhouse theories discussed above. Those theories proved even a better fit for transgender discrimination claims, since the very essence of being transgender is expressing gender in a manner that is inconsistent with our societal expectations given a person’s gender assigned at birth.
But EEOC rulings are not the reason the Supreme Court is taking up these questions today. In the past few years, several federal courts have held, for the first time, that sexual orientation and transgender discrimination violate Title VII’s ban on sex discrimination.
Sexual Orientation Discrimination: The Appellate Rulings in Zarda v. Altitude Express, Inc. and Bostock v. Clayton County
In 2018, a panel of thirteen judges on the U.S. Court of Appeals for the Second Circuit held in Zarda v. Altitude Express, Inc. that sexual orientation discrimination is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964. The en banc panel took a fresh look at an issue that was, well, in need of a fresh look. Unlike the earlier cases in which superficial analysis was the norm, the full court undertook a complete analysis of the issue. They were following the lead of the Seventh Circuit, which had taken up the same question en banc the year before, and ultimately reached a similar result (discussed here).
The plaintiff in this case sued on the theory that he was fired for being gay and for failing to conform to the stereotype that men should be sexually attracted only to women, not to other men.
Zarda (now deceased) was an openly gay man who worked as a skydiving instructor. He disclosed to a female client that he was gay—something he did routinely to preempt the awkwardness of the close physical proximity inherent in a tandem sky dive. Her boyfriend overheard and complained; Zarda was fired. The federal district court granted summary judgment to the employer on the theory that sexual orientation discrimination does not violate Title VII. The federal appellate panel upheld the ruling because it did not have the power to overrule previous panel decisions in the circuit, which had held that sexual orientation claims were not covered by Title VII. En banc, however, the court has the power to overrule prior decisions from a three-judge appellate panel. And so it did.
In the en banc ruling, the court expressly held that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of . . . sex.’ To the extent our prior precedents hold otherwise, they are overruled.” The Zarda court identified three different theories on which sexual orientation constitutes a subset of sex discrimination: (1) it is a function of sex; (2) it involves stereotyping; and (3) it constitutes associational discrimination.
First, sexual orientation discrimination only makes sense if an employer takes an employee’s sex into account—the classic understanding of sex discrimination. Even labeling someone as homosexual requires that we identify the person’s sex because the essence of the definition is being attracted to a person of the same sex. It is thus impossible to discriminate against a person because he is gay without firing him because he is a man—not a woman—who is attracted to men. The comparative test—would you fire the same employee if she was a woman rather than a man—supports the same conclusion. It is a gay man’s manhood that makes him vulnerable to this discrimination. As the court explained:
To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently ‘but for’ his or her sex. In the context of sexual orientation discrimination, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.
Under standard Title VII doctrine, it doesn’t matter whether this particular type of sex discrimination was the principal evil with which Congress was concerned. If the text bans a type of discrimination, everything that fits that definition is banned. This reasoning is how Title VII came to be understood to prohibit sexual harassment, disparate impact discrimination, sex-plus discrimination, and any number of other subsets of the general category of “sex discrimination.”
While the plain reading of Title VII should readily resolve this case, there are other reasons that federal employment anti-discrimination law prohibits sexual orientation bias in the workplace.
The court in Zarda concluded, secondly, that sexual orientation discrimination “is almost invariably rooted in stereotypes about men and women” and is thus a type of illegal sex stereotyping. The sex stereotyping theory recognized in Price Waterhouse means that “gender must be irrelevant to employment decisions” and that “in the specific context of sex stereotyping, 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.” Simply put, this stands for the proposition that Title VII doesn’t permit an employee to be treated adversely because their appearance or conduct fails to conform to stereotypical gender roles. The norm that individuals should only be attracted to people with whom they do not share the same sex is deeply held. But the court here sees it for what it is—the quintessential stereotype, no different from antiquated expectations that women should be feminine and men should be masculine. A man who is attracted to men commits the ultimate form of gender non-conformity, as does a woman who is attracted to other women.
Finally, the Zarda court concludes that sexual orientation is properly understood as sex discrimination because it involves associational discrimination, which courts have recognized as a type of intentional discrimination in the race context. Firing a white man, for example, because he is married to a black woman constitutes illegal race discrimination. By the same token, if it is race discrimination to discriminate against one party to an interracial couple, it is sex discrimination to do so with a same-sex couple. The court in Zarda was rightfully unimpressed with the argument that it is lawful to discriminate on the basis of these associations as long as all same-sex pairings are treated equally poorly. But this defense of “equal application” discrimination was rejected by the Supreme Court in Loving v. Virginia, in which the Supreme Court struck down Virginia’s ban on interracial marriage even though it punished white and black individuals equally for marrying outside their race.
Bostock v. Clayton County, at core, involved the same legal question. Gerald Bostock was a gay man who worked as a child welfare services coordinator for Clayton County. After participating in a gay recreational softball league, he began to be the target of disparaging remarks on the basis of his sexual orientation, and was eventually terminated for “conduct unbecoming” an employee. He sued, alleging discrimination on the basis of his sexual orientation in violation of Title VII. The district court denied the claim, and an Eleventh Circuit panel affirmed on the basis of a nearly forty-year-old circuit precedent (pre-Price Waterhouse, it should be noted). Unlike its sister circuits, the Eleventh Circuit refused to take the case en banc, so the panel decision gave the Supreme Court the kind of fresh circuit split it likes for certiorari grants.
Transgender Discrimination: R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission
Also before the Court is a case raising the same question about transgender discrimination. But this case, R.G. & G.R. Harris Funeral Homes v. EEOC, which held that transgender discrimination violates Title VII, does not represent the departure from the typical approach that Zarda does. This ruling is from the Sixth Circuit, which held as early as Smith v. City of Salem, that Title VII can be used to challenge discrimination against transgender employees. Many courts since then have reached the same conclusion under Title VII, as well as other anti-discrimination laws like Title IX. (Some of that history is reviewed here.) The issues are related, but the transgender cases just make the correct conclusion more apparent, because discrimination on the basis of the sex someone identifies with is, of course, sex discrimination.
The Likely Arguments
The Court’s disposition of these cases is important in many respects. Millions of LGBT employees live in states that do no protect them against employment discrimination. Mitch McConnell and the do-nothing Senate are not about to act on any legislation expressly extending Title VII protections to these groups (or, really, any group).
But this case will also serve as a good test of this newly constituted Supreme Court. The arguments in favor of interpreting “sex” to necessarily include sexual orientation and transgender status are straightforward textualist ones that have now been accepted by a large number of circuit judges appointed by presidents of both political parties.
The arguments, at this point, have been well hashed out. First, sexual orientation discrimination treats, say, a male employee attracted to men differently from a female employee attracted to men. Second, it involves the application of sex stereotypes. Third, it necessarily takes into consideration the sex of the employee and sex of those he’s attracted to, hence sex is “a motivating factor” in the decision. And, finally, courts have long held that an employer can’t discriminate based on the identity of those with whom an employee associates. These are all variations of the same argument, and one that’s based on an original public meaning of “sex” as biological sex, plain and simple.
That text, logic, and canons of interpretation all counsel in favor of a ruling to protect employees against sexual orientation and transgender discrimination does not mean we will see one. These cases, like many others on the docket this term, will be a test of the newly composed Court, with Justice Kennedy replaced by a much more conservative Justice Kavanaugh. As with the abortion case the Court has just agreed to review—despite having ruled on an identical issue just three years ago—we will see whether Justice Roberts’s concern for the Court’s legacy is enough to overpower the overtly partisan majority.