Today, the Supreme Court will hear arguments in three monumentally important employment discrimination cases. At issue is whether federal law prohibits private employers from discriminating against employees on the basis of sexual orientation and gender identity. Title VII of the Civil Rights Act of 1964 proscribes discrimination because of “race, color, religion, sex, or national origin.”
21 states and the District of Columbia currently have laws on the books explicitly prohibiting private employers from making hiring and firing decisions based on an individual’s sexual orientation or gender expression…Ohio is not one of them.
Case law among the federal Circuits is inconsistent, which is what brings us to today. The 2nd and 7th Circuits have held that employment discrimination claims based on sexual orientation are actionable, while the 11th has repeatedly reached the opposite conclusion. The law in our own 6th Circuit is a mixed bag. For over a decade and a half, its transgender employees, like the plaintiff in the third case today, have had the ability to sue their employers for discriminatory employment decisions, while sexual orientation remains an unprotected class.
The first two cases involve gay employees who alleged they were terminated because of their sexual orientation. In one, the estate of a male skydiving instructor alleges he was fired because he sometimes informed female clients that he was gay, in an effort to make them feel more at ease. The other case involves a county welfare worker in Georgia who alleges he lost his job, despite positive reviews, because of his homosexuality.
The plaintiffs in each of these cases argue that discriminating against someone because of their sexual orientation necessarily involves referencing their sex. That is, when an employer discriminates against a gay man, it is discriminating against him because he is attracted to other men. But for his sex, male, the conduct that the employer finds objectionable, being attracted to males, would not be objectionable.
The plaintiffs in the first two case also argue that discriminating against gay employees amounts to discriminating against individuals based on their close association with others, something that is proscribed by Title VII in the context of race and the Americans with Disabilities Act in disability cases.
Lastly, in an argument common to one raised in the third case, which concerns a transgender employee, the plaintiffs argue that discriminating against gay and lesbian employees is unlawful sex stereotyping. They argue when an employer discriminates against a gay or lesbian employee, what the employer is really doing is pronouncing that men and women who date members of their own gender do not conform to the employer’s preferred norms. This argument, first upheld by the Supreme Court in a case involving female Price Waterhouse employee in 1989, who alleged she was discriminated against because she was not feminine enough, underpins the decisions in the 6th Circuit that opened the courthouse doors to transgender litigants.
Aimee Stephens, a funeral home employee who was assigned male gender at birth but transitioned to female after six years at her employer, was fired because her employer believed she was violating “God’s commands.” Stephens argues that even if Title VII only encompasses the gender someone is assigned at birth, discrimination like what she endured is still discrimination “because of sex” because, had she been assigned female gender at birth, her employer would not have terminated her.
These are the first such LGBT employment cases heard since Justices Gorsuch and Kavanaugh joined the Court. While Kavanaugh replaced Justice Kennedy, who was a key vote in many previous LGBT cases, it is a decision by Gorsuch’s predecessor, the late Justice Scalia, in which the plaintiffs in the first two cases have looked for support. In Oncale v. Sundowner, Scalia wrote that while, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII…statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”