Supreme Court to hear LGBT discrimination cases, including Zarda

The Supreme Court has agreed to determine whether sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, the primary federal employment discrimination statute. One of those cases is Zarda v. Altitude Express, which the Second Circuit resolved in February 2018, ruling that Title VII prohibits sexual orientation discrimination. The other case, Bostock v. Clayton County, arises from the Eleventh Circuit. The Court granted certiorari on April 22.

I wrote about Zarda at this link. I assisted in writing the brief in Zarda in the Second Circuit. The issue is this: in 1964, when Congress enacted the Civil Rights Act, it prohibited employment discrimination on the basis of race, gender, national origin, color and religion. In all likelihood, gay rights were not on the radar when the law was enacted, at least not for any congress-member. Over the years, plaintiffs' lawyers tried to convince the federal courts that sexual orientation discrimination was a form of gender discrimination, but the federal courts rejected those efforts. A few years ago, however, the EEOC took a fresh look at this issue and, in the Baldwin case, ruled that sexual orientation discrimination is in fact a form of gender discrimination. The EEOC reasoned that (1) this form of discrimination constitutes sex stereotyping, which violates Title VII; (2) discrimination on the basis of sexual orientation necessarily takes into account the employee's gender, as men who are attracted to women are not punished like men who are attracted to other men; and (3) this form of discrimination is a form of associational discrimination, which violates Title VII, in that you cannot be fired for associating with African-Americans and, presumably, other men or women.

After the EEOC issued Baldwin, the Seventh Circuit in 2017 ruled en banc that its prior rulings on this issue are now bad law. In the Hively case, the Seventh Circuit adopted the EEOC's reasoning, becoming the first federal appeals court to interpret Title VII this way. In 2018, the Second Circuit also took up this issue en banc, ruling in favor of the plaintiff and jettisoning prior precedent that held to the contrary. But the Eleventh Circuit in Bostock sided with management on this issue, narrowly interpreting Title VII and holding to pre-Baldwin standards. This Circuit split prompted the Supreme Court to take the case.  

The Supreme Court on April 22 also granted certiorari in a related case, R.G. & G.R. Harris Funeral Homes v. EEOC, which held that Title VII also prohibits discrimination against transgender employees. In that case, the Court will decide whether this form of discrimination constitutes unlawful sex-stereotyping, prohibited under Title VII thanks to Price Waterhouse v. Hopkins, decided by the Supreme Court in 1989.

These cases will in all likelihood be the blockbuster civil rights cases for the Supreme Court's 2019-2020 term. There is no way to predict what the Court will do in these cases. Most of the gay rights cases decided by the Supreme Court since 1996 have ruled in favor of expanded rights, most famously in the same-sex marriage case. But the principle author in these cases, Justice Kennedy, has since retired. On the other hand, more and more Americans favor gay rights and would probably be surprised that gay employees in many jurisdictions can be fired because of their sexual orientation, so public opinion is probably in the plaintiffs' favor. There was also a slight bi-partisan divide in the Second Circuit when it issued Zarda: one conservative judge, Dennis Jacobs, sided with the plaintiffs in that case. A liberal judge, Gerard Lynch, dissented and ruled that Title VII (as presently drafted) cannot prohibit sexual orientation discrimination because that is not what Congress had in mind in 1964, when it enacted the Civil Rights Act.