By: Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.

After decades in which Congress has considered and failed to pass measures adding sexual orientation to the list of protected characteristics under federal civil rights law, LGBTQ advocates and all those who support workplace rights are celebrating the United States Supreme Court’s ruling on June 15, 2020 that the landmark federal law prohibiting discrimination in the workplace protects lesbian, gay and transgender employees from being disciplined, fired or rejected for a job based on their sexual orientation or gender identity.

In a surprising 6-3 decision, authored for the Court’s majority by Republican and Trump appointee Justice Neil Gorsuch, the Court accepted arguments that Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2(a)(1), a federal law which prohibits discrimination by employers on the basis of an employee’s “race, color, religion, sex, or national origin”, also bans discrimination due to sexual orientation and gender identity, even if Congress may not have intended it at the time.  In ruling this way, Justice Gorsuch rejected the argument that, when the statute was passed in 1964, Congress did not intend for it to extend protections to gay and transgender persons.  Justice Gorsuch gave a nod to the plain language of the statute and the Court’s longstanding precedent, in extending Title VII protections in certain situations.  Justice Gorsuch noted that it was the Court’s job to apply the law as it was written, not as specific legislators may have anticipated.

The decision came as a welcome surprise to many observers, as Justice Gorsuch was joined by Republican appointee, Chief Justice John Roberts, in joining the four Democratic appointees, to form a majority.  Justice Samuel Alito authored one dissent and was joined by Justices Clarence Thomas and Brett Kavanaugh.  Additionally, Justice Kavanaugh authored a separate dissent.

The decision covered two sets of cases. The first concerned a pair of lawsuits from gay men who claimed they were fired because of their sexual orientation. In the first case, Donald Zarda alleged he was fired from his skydiving instructor position after he disclosed his sexual orientation to a female customer. The United States Court of Appeals for the Second Circuit, which covers federal appeals filed in New York, Connecticut and Vermont, ruled in Zarda’s favor. The Court identified three primary grounds for its conclusion, namely that: 1) sexual orientation and a person’s sex cannot be seen separately as sexual orientation is defined in relation to one’s sex and the sex of whom one is attracted to; 2) sexual orientation discrimination is based upon gender stereotypes that dictate how a person should exist, based on their sex, including to what sex a person should be attracted to; and 3) sexual orientation discrimination is a form of associational discrimination that is motivated by an employer’s disapproval or opposition to association between members of a particular sex. Zarda v. Altitude Express, Inc., 883 F.3d 100, (2d Cir. 2018). Mr. Zarda died in 2014 and his estate continued pursuing his case.

The United States Court of Appeals for the Eleventh Circuit, covering federal appeals in Alabama, Georgia and Florida, ruled the opposite way in another sexual orientation case. There, a child welfare services coordinator alleged he was fired because of his sexual orientation after his employer discovered he participated in an LGBT softball league. Bostock v. Clayton Cty. Bd. of Comm’rs, 723 F. Appx. 964 (11th Cir. 2018). The Court cited a decision from the Fifth Circuit, Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), considered binding precedent in the Eleventh Circuit due to a circuit split in 1981, stating that “discharge for homosexuality is not prohibited by Title VII,” in its ruling against Bostock.

The third case, EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560, 566 (6th Cir. 2018), involves discrimination on the basis of gender identity or expression. Aimee Stephens, a transgender woman, alleged that after working as a funeral director for six years, she was fired two weeks after informing her employer that she was transgender and would be presenting outwardly as a woman. The United States Court of Appeals for the Sixth Circuit, covering federal appeals in Kentucky, Michigan, Ohio and Tennessee, ruled in Stephens’ favor, holding that discrimination against transgender employees is barred by Title VII. Ms. Stephens died only one month ago and her estate has pursued her case.

While today’s win advances LGBTQ rights in the workplace, members of this community continue to face widespread discrimination in housing, public education, federal funding, credit and the jury system. The Equality Act, H.R.5, 116^th Congress (2019-2020), if passed, would amend the Civil Rights Act to protect LGBTQ individuals from discrimination in these areas. The Act passed the House of Representatives on May 17, 2019 in a bipartisan vote and is now in the Senate, where it was received for consideration on May 20, 2019.

For now, the question on whether discrimination “because of sex” applies to gay and transgender workers has been answered. Justice Gorsuch wrote that it did: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Millions of employees across the nation now have legal protection against such discrimination.

This 6-3 decision, in favor of expanding the coverage of Title VII, will form an interesting backdrop to see how the Court handles a case it is set to decide next term with regard to whether individuals and businesses can seek exemptions from anti-discrimination laws based on religious beliefs.

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