The U.S. Supreme Court has agreed to settle the question of whether LGBT employment rights are protected by federal civil rights law after years of contradictory rulings on the issue at the appeals court level
A series of cases involving LGBT employment rights have been making their way through various federal Courts of Appeal around the country. Although most of those court findings supported the opinion that LGBT employees and applicants are protected by the law, that is not a view universally held.
But don’t expect the issue to be settled by the High Court any time soon. Most legal observers believe it will render a decision no earlier than later this year, and perhaps as late as June 2020—which would be smack dab in the middle of the Presidential campaign season.
Gay rights legislation has been hung up in Congress for years and there is little prospect it will be passed and enacted any time soon. At present, only 24 states have passed their own laws guaranteeing employment rights for LGBT workers, as have some major cities.
The trend seems to be heading in the direction of greater tolerance and acceptance, however. Several large U.S. and internationally-based corporations have chosen to adopt inclusive policies that protect the LGBT workers within their corporate ranks, and some firms have even established supplier set-aside programs for LGBT-owned businesses.
In 2017, early in President Trump’s administration, he chose to sign an executive order extending an earlier directive issued by President Obama requiring that all federal government agencies and federal contractors and subcontractors (an estimated 15% of American businesses) adhere to protections for LGBT employees. In fact, at a time when it looked like the Supreme Court might not decide to take up the issue, employment attorneys were advising businesses to develop their own anti-discrimination policies because of the way current trends are heading.
For employers in many jurisdictions, the Supreme Court announcement is somewhat of a non-story, note attorneys Jeffrey Fritz and Richard Meneghello of the law firm of Fisher Phillips. “After all, almost half of the states in the country and many local governments have laws prohibiting sexual orientation and gender identity discrimination in employment. The employers doing business in these jurisdictions have long since integrated workplace protections and policies to include LGBT applicants and workers.”
For those in the other states, the Supreme Court decision could mean widespread changes, the lawyers admit. A definitive statement by the Supreme Court “will mean that you need to revise your handbooks, your training and orientation materials, and your overall approach to workplace relations.”
In its most famous decision regarding LGBT rights, the Supreme Court legalized same-sex marriage throughout the United States in a 2015 decision on a 5-4 vote that was believed to have been spearheaded by Justice Anthony Kennedy, who has since retired. It is not known how his replacement, Brett Kavanaugh, will vote on the employment rights issue.
The Supreme Court may be arriving late to the party, but its guidance should prove to be significant. At issue is Title VII of the of the Civil Rights Act of 1964, which prohibits discrimination based on religion, national origin, race, color and sex. The argument is over whether the ban on discrimination by sex refers only to gender—discrimination against someone because they are a man or a woman—or also includes discrimination against someone because of their sexual orientation.
The Cases at Hand
The High Court has agreed to review three cases where federal Appeals Courts have chosen to take different positions on this issue. The three cases are:
1) Zarda v. Altitude Express Inc. The Second Circuit Court of Appeals held that Title VII prohibits discrimination based on sexual orientation in a case involving an LBGT employee. The employer appealed.
In 2010, Donald Zarda, who worked as a sky-diving instructor for Altitude Express on New York’s Long Island in 2010, was fired by his employer. He participated in tandem skydives, where he would be strapped hip-to-hip with clients. Zarda said he found it best to inform his female clients that he was gay in order to ease any concerns that they might have had about being strapped in close physical proximity to a man.
During one jump, he attempted to lightheartedly comfort his female client by telling her that he was gay “and had an ex-husband to prove it.” The client claimed that Zarda inappropriately touched her and only disclosed his sexual orientation to excuse his behavior. She complained to the company, which in turn fired Zarda.
Zarda, however, believed his termination was motivated by his sexual orientation and brought suit against his former employer, which included a claim for discrimination under Title VII.
2) Bostock v. Clayton County. The Eleventh Circuit Court of Appeals held that Title VII permits discrimination based on sexual orientation in another case involving an LGBT employee. The employee appealed.
Gerald Bostock, a child welfare services coordinator for Clayton County (GA) Juvenile Court System, was fired for alleged financial irregularities discovered during an internal audit of the funds he managed. He filed suit under Title VII claiming that the real reason he was let go involved sexual orientation bias. Bostock cited disparaging comments made to him at work after it was alleged that his employer discovered that he was playing in a gay recreational softball league.
3) EEOC v. R.G. & G.R. Harris Funeral Homes Inc. In March 2018, the Sixth Circuit Court of Appeals became the first appellate court to extend Title VII to cover transgender and transitioning employees.
Aimee Stephens, a transgender woman who was born biologically male, began work as a funeral director for the Harris Funeral Homes in Detroit in 2007. At the time she was hired, she presented as a man and used her then-legal name, William Stephens. She was later fired after informing the funeral home owner that she was transitioning from male to female.
The owner sought to justify his decision by referring to the Bible and saying that he believed that his customers would be unnecessarily distracted and upset by the situation.
What Employers Should Do
Although the Trump Department of Justice has chosen to adhere to the position that Title VII does not extend to gays, the opposite position has been taken by the U.S. Equal Employment Opportunity Commission (EEOC), which has found a unique backdoor approach to asserting a legal justification for its view.
Years ago, EEOC adopted the position that discrimination based on gender stereotyping violates Title VII, and the commission’s policy in this regard has been upheld by the Supreme Court.
Gender stereotyping occurs when other employees (and sometimes supervisors) engage in harassing behavior towards a male employee whom the other employees deem to be too effeminate, or a female employee who is seen as being too masculine in appearance or behavior. Often this harassment includes taunts using offensive terms for gays and lesbians.
It shouldn’t be surprising that the EEOC made the logical jump from its position on sex stereotyping to reach the conclusion that, if someone is discriminated against because they are perceived to be gay, then there is no justification for not considering it illegal to discriminate against those who actually are gay.
In the meantime, what should employers do? Amy Epstein Gluck, an attorney with the law firm of FisherBroyles, says they should take several steps to make sure they won’t face future legal liability, even in those states that don’t ban LGBT employment discrimination.
Discrimination on the basis of gender stereotypes—perceptions about how a person should look, dress and act—is illegal, she reminds employers, quoting the Supreme Court decision upholding the EEOC position: “An employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.”
To avoid running afoul of the EEOC enforcement against gender stereotyping, Epstein Gluck recommends that employers make sure that anti-discrimination and anti-harassment policies contained in employee handbooks include a prohibition against sex stereotyping. This policy also must be disseminated throughout the workplace and updated as needed.
Provide regular, interactive training to your employees, supervisors and human resources staff, too so that they can recognize, respond to and prevent unlawful discrimination and harassment based on sex stereotypes, she says, including giving examples, fact-based scenarios and pop quizzes.
“Rest assured that the EEOC will continue investigating employees’ claims of sex discrimination based on its interpretation of what that term means,” Epstein Gluck stresses. “Thus, employers want to continue their best practices and comply with their own state laws.”