The US Supreme Court will Hear Not One, Not Two but Three Cases Involving Rights of LGBT Employees!

April 23, 2019

Lía Fiol-Matta, Esq., Ty Hyderally, Esq, Stephanie Gibson

On April 22, 2019, the United States Supreme Court agreed to hear three cases involving federal workplace protections for LGBT employees. The Court will decide whether 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”, applies to discrimination due to sexual orientation and gender identity. All of the cases involve terminations and will be argued in the fall, with decisions likely by June 2020.

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).

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), stating that “discharge for homosexuality is not prohibited by Title VII,” in its ruling against Bostock. The Eleventh Circuit considered the Fifth Circuit case as binding in the Eleventh Circuit due to the circuit split in 1981.

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 Stevens, 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 Stevens’ favor, holding that discrimination against transgender employees is barred by Title VII.

Although the Supreme Court has agreed to review these cases, LGBT advocates and allies face several challenges to a favorable ruling. First, the Court has a newly-appointed conservative majority with the addition of President Trump appointees Associate Justice Neil M. Gorsuch and Associate Justice Brett M. Kavanaugh. This adds to conservatives, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., and Associate Justice Samuel A. Alito.  These five justices can out-vote the four more liberal justices, Associate Justice Stephen G. Breyer,. Associate Justice Ruth Bader Ginsburg, Associate Justice Sonia Sotomayor, and Associate Justice Elena Kagan. Second, the Court has lost Justice Anthony Kennedy, a historical champion of LGBT rights and author of the Court’s recent important decisions granting LGBT protections. Third, the Trump administration has argued before the Court that Title VII does not protect LGBT people.

LGBT advocates and legal scholars alike will be watching the Supreme Court for its decisions with great interest and trepidation. People in the LGBT and legal communities alike will be asking themselves questions such as: How broadly is the Court willing to define sex discrimination? What will this mean for LGBT rights and civil rights in general in the United States? How will the 2020 presidential election shape the arguments and proceedings? Despite the challenges to favorable rulings for these individuals, there is hope that zealous advocacy and a just Court will turn the tide of civil rights in favor of the LGBT community.

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