SCOTUS Watch: 2 High-Profile LGBTQ Cases Before The High Court
U.S. courts are split on LGBTQ protections, and until we get a ruling from SCOTUS, some employees will not have a legal remedy.
I’ve told you before about Zarda v. Altitude Express, a case in which the Second Circuit held that sexual orientation is protected under Title VII, the main federal anti-discrimination law. That case has been appealed to SCOTUS and the Court is now in the process of considering the petition for cert.
Another LGBTQ-rights case is now also pending before SCOTUS, presenting the issue of whether transgender status is protected under Title VII. Here’s a quick rundown of the case and its implications, followed by my thoughts on how these cases will shake out.
What’s The Case About?
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EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is a case brought by plaintiff Aimee Stephens, a transgender woman who worked as a funeral director in Michigan. She presented as a male when she started her job, but then told her supervisor several years later that she was planning to transition to a woman and would start wearing women’s clothes to work. She was fired shortly after that.
Her supervisor said he fired her because Stephens “was no longer going to represent himself as a man.” The supervisor stated in the case that he believes gender transition “violat[es] God’s commands” since “a person’s sex is an immutable God-given fit.”
The EEOC sued on Stephens’s behalf in federal district court in Michigan, claiming discrimination in violation of Title VII. The district court held Stephens was discriminated against because her employer engaged in sex stereotyping, but that it was protected by the Religious Freedom Restoration Act. Stephens appealed.
The Sixth Circuit agreed with Stephens on March 7 of this year that Title VII bars employment discrimination against transgender people because: (1) transgender discrimination is gender stereotyping (which SCOTUS has held violates Title VII); and (2) transgender discrimination is inherently sex discrimination since such a decision must be “motivated, at least in part, by the employee’s sex.” The Sixth Circuit then held that the employer was not protected by the Religious Freedom Restoration Act, reversing the district court.
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What’s Happening Now?
The employer appealed the Sixth Circuit’s decision to SCOTUS. This past Wednesday, October 24, the Department of Justice filed a brief on the EEOC’s behalf before the Court arguing that Title VII does not protect gender identity, and so firing transgender workers is not illegal.
Yes, you read that right. Even though the EEOC prosecuted the case on Stephens’s behalf at the district and circuit court levels — arguing contrary to the DOJ’s present position — the Solicitor General’s Office usually argues on behalf of federal agencies before SCOTUS. Acting EEOC Chair Victoria Lipnic recently told reporters that the agency doesn’t plan to file an amicus brief without prompting from SCOTUS. (Recall that the EEOC and DOJ were similarly split in their Second Circuit filings in the Zarda case.)
It’s worth noting that the DOJ’s brief was filed on the heels of a report from The New York Times discussing a U.S. Department of Health and Human Services draft regulation that would define “sex” as fixed at birth.
How Would A Ruling Impact Employees And Employers?
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U.S. courts are split on LGBTQ protections. While SCOTUS has long held that gender stereotyping is unlawful, there is no national consensus on whether sexual orientation or transgender status is protected under Title VII absent a stereotyping component.
It thus depends on where one lives as to whether those are protected classes under federal employment law. (It’s worth remembering here, however, that a lot of state and local jurisdictions have their own laws protecting sexual orientation and transgender status.)
Despite the uncertainty under federal law right now, the relatively rapid changes in this area of the law and the growing cultural and societal acceptance have influenced many employers to treat sexual orientation and transgender status as protected classes under Title VII anyway. Many employers are doing everything they can to retain good workers in our current competitive marketplace and maintaining an inclusive workplace has become a top priority.
As the Stephens and Zarda cases demonstrate, however, there are still employers who take sexual preference and transgender status into account when making employment decisions. Until we get a ruling from SCOTUS on this issue and as long as there is only a patchwork of state and local protections available, some employees will not have a legal remedy.
Concluding Thoughts
I think that the Zarda case presents a clean set of facts and procedural issues for SCOTUS to resolve the issue of whether sexual orientation is protected under Title VII, but I believe the high court is going to decline to review Ms. Stephens’s case as there is not as deep a divide in the federal courts on the issue.
However the court rules, it looks like we’ll have one or maybe even two important and far-reaching contemporary legal issues resolved at the federal level.
Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)
