Trial News

The U.S. Supreme Court recently heard heated oral arguments in three closely watched cases that ask whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation or transgender status. With federal law protections at stake for millions of LGBT employees, the justices repeatedly challenged counsel and the U.S. solicitor general—arguing in support of the employers—on how to interpret Title VII’s ban on discrimination “because of sex.” Attorneys and media assessing the arguments have pointed to a new potential swing vote: Justice Neil Gorsuch.

On October 8, the U.S. Supreme Court heard heated oral arguments in three closely watched cases that ask whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation or transgender status. With federal law protections at stake for millions of LGBT employees, the justices repeatedly challenged counsel and the U.S. solicitor general—arguing in support of the employers—on how to interpret Title VII’s ban on discrimination “because of sex.” In the absence of now-retired Justice Anthony Kennedy—the author of the majority opinions in Obergefell v. Hodges (135 S. Ct. 2584 (2015)) and other groundbreaking decisions supporting LGBT rights—attorneys and media assessing the arguments have pointed to a new potential swing vote: Justice Neil Gorsuch. (Bostock v. Clayton Cnty., Ga., No. 17-1618; Altitude Express, Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Emp’t Opportunity Comm’n, No. 18-107 (U.S. oral arg. Oct. 8, 2019).)

Gerald Bostock and Donald Zarda, the plaintiffs in the first two cases, allege they were unlawfully fired after their employers learned that they are gay. (Zarda died in 2014, and his estate has continued his case.) Bostock sued his employer in federal court in Georgia, and the Eleventh Circuit affirmed dismissal of the suit, holding that Title VII does not prohibit discrimination based on sexual orientation. A federal court in New York also tossed out Zarda’s case; but an en banc Second Circuit reversed, finding that Title VII applies and that sexual orientation discrimination is a type of sex discrimination, as Trial News previously reported. The Supreme Court granted certiorari and consolidated the cases.

The third plaintiff, Aimee Stephens, was fired shortly after informing her employer that she is transgender and intended to begin living openly as a woman. The Equal Employment Opportunity Commission sued on Stephens’s behalf in federal court in Michigan, and the Sixth Circuit ruled that discrimination based on transgender status is sex discrimination under Title VII, as Trial News previously reported. The Supreme Court agreed to review whether the statute prohibits discriminating against transgender people because of their transgender status or as sex stereotyping under Price Waterhouse v. Hopkins (490 U.S. 228 (1989)).

During oral arguments, the justices questioned how to apply Title VII today when Congress in 1964 did not intend to ban sexual orientation or transgender discrimination. An amicus brief in support of the plaintiffs, authored by Lawyers’ Committee for Civil Rights Under Law and The Leadership Conference on Civil and Human Rights and joined by AAJ and other organizations, stressed that the statute’s text should govern and that since 1964, “courts have repeatedly interpreted the plain language of Title VII to ensure protection against . . . all forms in which discrimination is manifested[.]” Counsel for the employee plaintiffs also discussed this.

Stanford law professor Pamela Karlan, representing Bostock and Zarda, argued that, regardless of Congress’s original intent, sexual orientation discrimination violates Title VII because it disadvantages men and women in relation to each another. “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. . . . And that discrimination is because of sex . . . because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave.” Justice Elena Kagan echoed this point, describing the applicable Title VII test as one that requires decision-makers to ask only “would the same thing have happened to [plaintiffs] if [they] were of a different sex?”

But several justices, including Chief Justice John Roberts and Justice Samuel Alito, expressed doubts that a policy prohibiting same-sex relationships for both men and women constituted sex discrimination. Chief Justice Roberts also noted that anti-discrimination laws in more than 20 states explicitly prohibit sexual orientation discrimination—evidence, he suggested, that this form of discrimination is distinct from sex discrimination and therefore not prohibited by Title VII. Jeffrey Harris of Arlington, Va., counsel for Bostock’s and Zarda’s employers, and U.S. solicitor general Noel Francisco reiterated this point, arguing that Congress, like state legislatures, should clarify whether Title VII prohibits sexual orientation discrimination.

Discussion in Stephens’s case focused primarily on how ruling in her favor could hypothetically impact workplace polices and whether the questions presented should be left to legislatures to decide. Washington, D.C., attorney David Cole, who represents Stephens, was peppered with questions about how access to sex-segregated workplace bathrooms and locker rooms could be affected by a decision in his client’s favor. Cole reiterated that those issues were not before the Court, but when pressed by Chief Justice Roberts and Justice Sonia Sotomayor, he answered that judges facing future bathroom-access questions could use Oncale v. Sundowner Offshore Services, Inc. (523 U.S. 75 (1998)) to evaluate on a case-by-case basis whether a sex-specific policy imposes a “discriminatory injury.” Cole consistently returned to the text of Title VII and how discrimination on the basis of transgender status clearly violates the statute: “If [Stephens] had a female sex assigned at birth, she would not be fired. Because she had a male sex assigned at birth, she is fired. That is discrimination because of sex.”

For Columbus, Ohio, attorney Ben Cooper, who cofounded the state’s first legal clinic for transgender people, it’s unclear whether “without Justice Kennedy, the plaintiffs can get a fifth vote. Based on the questions at argument, their best hope seems to be Justice Gorsuch.”

Other commentators also have focused on Justice Gorsuch, a textualist, who expressed uncertainty about how to apply Title VII to the facts at issue. In the consolidated arguments regarding sexual orientation, for example, he pushed counsel for the employers on whether, after hypothetically taking truth serum, they would be forced to admit that Bostock and Zarda were fired because “this person was a man who liked other men” (emphasis added). If so, Justice Gorsuch continued, “isn’t that first part sex?” And in a discussion with Cole on whether transgender status discrimination is sex discrimination, Justice Gorsuch stated, “[A]ssume for the moment I’m with you on the textual evidence. It’s close, okay? . . . . It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that Congress didn’t think about it[?]”

Cooper also noted how the more liberal justices pushed plaintiff counsel. “Some of the liberal justices asked questions I would have expected from the more conservative justices, and a surprising number of these inquiries focused on bathrooms and dress codes. I think worries about these issues are often overblown, but members of the Court seemed to wonder what effect a ruling in the Title VII context would have in these areas of social and political concern. Maybe the more liberal justices know those tough questions must be answered to get a fifth vote.”