By Jeff Jones
Special to the UCBJ
On April 22, 2019, the United States Supreme Court announced it would review three cases, Bostock v. Clayton County, GA, Altitude Express, Inc. v. Zarda, and R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC. In doing so, the Court will consider whether Title VII’s prohibition on discrimination “because of … sex” necessarily includes a prohibition on discrimination because of sexual orientation and/or transgender status. For decades, Congress has declined to amend Title VII to explicitly include sexual orientation and/or transgender status (gender identity) as protected classifications under Title VII. With an increased focus on LGBT issues in the courts and in society over the last decade or more, the Supreme Court will now weigh in on whether the 1964 statute should be read to include sexual orientation and/or transgender status as protected classifications.
What does Title VII’s prohibition on discrimination because of sex mean?
Prior to 1989, the courts which have evaluated Title VII’s prohibition on discrimination because of sex unanimously concluded that the statute prohibited the favoring of men over women and did not cover sexual behavior or sexual orientation. The statute’s purpose was to provide a level playing field in the workplace for both women in comparison to men and for men in comparison to women. In 1989, the Supreme Court issued its decision in Price Waterhouse v. Hopkins, which, although failing to result in a majority opinion, has been cited as a paradigm shift in the application of Title VII. At the heart of the issue in Price Waterhouse was whether Ms. Hopkins was discriminated against because of her sex when she was denied a promotion for “unbecoming” behavior that her similarly situated male colleagues were permitted to display without consequence. What would normally have been a simple case of whether Ms. Hopkins was held to a disadvantageous term or condition of employment in comparison to her similarly situated male colleagues has become far more due to the plurality noting that Ms. Hopkins was penalized for failing to meet certain sexual stereotypes, namely perceptions on how women should dress, speak and act. Aggressive speech and an overbearing management style were cited as reasons to deny her promotion to partner, while several of her male colleagues engaged in similar behavior but were nonetheless promoted. This disparate treatment resulting in the loss of a promotion proved sufficient evidence that Ms. Hopkins was discriminated against because of her sex, as a majority of the Court held, even if they could not agree on the terminology to use.
The question the Supreme Court is asking in the R.G. and G.R. Harris Funeral Homescase is whether a plaintiff may state a claim simply for failing to abide by sexual stereotypes. The Court’s question begs the question of whether Price Waterhouse changed the analysis when it comes to Title VII’s prohibition on discrimination because of sex. Yet, opinions from the Supreme Court after Price Waterhouse would tend to answer that question in the negative. As Justice Ginsburg made clear in her concurring opinion in Harris v. Forklift Systems in 1993, “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” The Supreme Court adopted Justice Ginsburg’s standard for interpreting Title VII when it issued its decision in Oncale v. Sundowner Offshore Servs., Inc. in 1998.
Does Title VII prohibit discrimination on the basis of sexual orientation?
Under the Ginsburg standard, a practice that does not subject women to a disadvantageous term or condition of employment when compared to their male colleagues is not sex discrimination under Title VII. When analyzing a claim of discrimination based on sexual orientation, men and women are held to the same standard and thus, any discrimination because of the individual’s sexual orientation is not discrimination “because of … sex.” This is the case because even if sexual behavior and sexual attraction are “the sin quan non” of sexual stereotypes, such a stereotype does not disadvantage women versus men or vice versa.
In Bostock, the plaintiff asserted he was discharged for participating in a gay softball league, while the county claimed he was terminated for misuse of funds. In Zarda,the plaintiff, a tandem high-dive instructor, asserted he was terminated for being gay, while the defendant claimed he was terminated for inappropriate touching of a female customer. While the United States Court of Appeals for the Eleventh Circuit upheld its prior precedent in Bostock that Title VII did not prohibit discrimination on the basis of sexual orientation, the United States Court of Appeals for the Second Circuit reversed its prior precedent when, in Zarda, it opined that discrimination based on sexual orientation was a form of sex discrimination. The Second Circuit recognized that the term “sex” under Title VII “means biologically male or female” in reaching its conclusion that making an employment decision based on an employee’s sexual orientation applied an impermissible sexual stereotype in violation of Title VII.
In an effort to support the often required “comparator evidence” (a similarly situated person not of the protected classification who was treated more favorably), the Second Circuit held that had the plaintiff been female and involved in a romantic relationship with a male, the plaintiff would not have suffered the same fate, in this case termination. In following the United States Court of Appeals for the Seventh Circuit’s analysis of “only changing the sex of the plaintiff and leaving all other factors the same,” the Second Circuit changed two relevant factors, both the person’s sex and the person’s sexual orientation by comparing a homosexual male to a heterosexual female. Such a comparison fails to compare two people who are similarly situated, especially when the (previously non-covered) factor is sexual orientation and that factor is discounted as of no consequence. Yet, the Second Circuit concluded that, based on its comparison, “sexual orientation is a factor of sex” and, therefore, protected under Title VII.
The Supreme Court will have to determine the proper analysis for applying Title VII’s prohibition on discrimination because of sex. It is unknown whether the Court will hold that the application of a “sexual stereotype” is in and of itself a violation of Title VII even if that alleged stereotype applies equally to both men and women as in the Zarda case, and if so, what constitutes an impermissible sexual stereotype. Because Bostock and Zarda reached opposite conclusions on the same legal question, the two cases have been consolidated for briefing and oral argument.
Does Title VII prohibit discrimination on the basis of transgender status?
In R.G. and G.R. Funeral Homes, the United States Court of Appeals held that a person’s transgender status or intent to undergo a gender transition was a protected status and that discrimination against a person on the basis of transgender status or an intent to undergo a gender transition was discrimination because of sex. The Sixth Circuit held that the Funeral Homes’ decision to terminate a male funeral director who announced that, upon his return from a vacation, he would appear and dress consistent with the female dress code violated Title VII. The Sixth Circuit found that the decision necessarily considered the employee’s sex and, therefore, violated Title VII because an employee’s sex “must be irrelevant to employment decisions.” The Sixth Circuit also found that a person’s gender non-conforming behavior could not be considered because to do so would be to apply an impermissible sexual stereotype. Relying on Price Waterhouse, the Sixth Circuit held that if a female employee could not be denied a position for failing to wear make-up and wear dresses, then a male employee could not be denied a position when he did. According to the Sixth Circuit, “discrimination based on a failure to conform to stereotypical gender norms” violates Title VII.
The Supreme Court has asked the parties to address two issues in this case. First, the Court will consider “whether Title VII prohibits discrimination against transgender people based on their status as transgender.” Second, the Court will consider “whether Title VII prohibits discrimination against transgender people based on … sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 288 (1989).” How the second question is answered will likely have a significant effect on how the Court decides the cases of Bostock and Zarda. A ruling is expected late spring 2020, but no later than the end of the Supreme Court’s next term in June 2020.