By Chris Flurry
A Michigan funeral director, a Georgia county bureaucrat, and the family surviving a New York skydiving instructor represent a series of litmus tests brought before the Supreme Court of the United States on Tuesday, Oct. 8, 2019.[1]
The Supreme Court heard oral arguments for three cases, all of which generally consider whether employees are protected from discrimination on the basis of sexual orientation and gender identification.[2] In particular, Bostock v. Clayton County and Altitude Express, Inc., v. Zarda asks whether an employee’s sexual orientation is protected from employer discrimination in the context of a consolidated hearing.[3] R.G. & G.R. Harris Funeral Home v. EEOC poses two questions, both relating to whether existing federal law, namely Title VII, prohibits discrimination on the basis of gender identity.[4]
All three cases hinge upon interpretation of Title VII of the Civil Rights Act of 1964.[5] The general thrust of Title VII makes it unlawful for employers to take adverse employment action based on particular protected characteristics, such as an “individual’s race, color, religion, sex, or national origin.”[6] The three cases focus on the “because of . . . sex” clause, and ask whether “sex” also prohibits discrimination based on sexual orientation and gender identity, or alternatively, if discrimination due to sexual orientation and gender identity amounts to gender-based stereotyping.[7] Each case will be discussed in turn below, followed by a review of the applicable law.
The Facts: Every Case Has a Story
Bostock v. Clayton County
Gerald Lynn Bostock began advocating for youths in the Clayton County, Georgia, juvenile court system in 2003.[8] Bostock served as the county’s child welfare service’s coordinator and helmed the county’s Court Appointed Special Advocates program, a guardian ad litem program.[9] Throughout his ten years of service to the county, Bostock received accolades and recognition, including taking part in national child advocacy programs.[10] In January 2013, Bostock began participating in the Hotlanta Softball League, a primarily gay softball league.[11] Bostock is gay.[12] The county conducted initiated an audit of Bostock’s program in 2013.[13] The chief judge of the Clayton County juvenile court terminated Bostock in June 2013.[14] The stated reason for Bostock’s termination was “conduct unbecoming of a County employee.”[15] The county contends it terminated Bostock as result of the audit results.[16] Bostock contends the county discriminated against him on the basis of his sexual orientation in both initiating the audit and his eventual termination.[17]
Altitude Express, Inc. v. Zarda
Donald Zarda worked as a skydiving instructor for Altitude Express, Inc. in New York[18]. Commonly in his duties, Zarda provided tandem skydives to customers.[19] In a tandem skydive, an instructor is strapped “hip-to-hip and shoulder to-shoulder” with a customer.[20] In June 2010, Rosanna Orellana and David Kengle visited Altitude Express.[21] Zarda conducted a tandem jump with Orellana[22]. Prior to the jump, Zarda told Orellana he was gay.[23] According to Zarda, he “sometimes told female clients about his sexual orientation to assuage any concern they might have about being strapped to a man for a tandem skydive.”[24] Altitude Express contends Zarda was terminated because Orellana claimed Zarda “inappropriately touched her” and a series of previous complaints.[25] Zarda contended he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”[26]
Donald Zarda died in a BASE jumping accident in Switzerland in October 2014.[27] Zarda’s former partner, William Moore, and his sister, Melissa Zarda, continued his case as co-executors of his estate.[28] “There was no question that we were going to pursue the case,” Melissa Zarda told NBC News.[29]
R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC
Aimee Stephens began work for R.G. & G.R. Harris Funeral Homes, Inc., as a licensed funeral home director and embalmer in 2007.[30] Stephens had more than two decades experience in the funeral services industry.[31] Tom Rost owns Harris Funeral Homes, which operates multiple funeral homes in Michigan.[32] Harris Funeral Homes maintains a dress code for employees interacting with clients.[33] The dress code is sex-specific.[34] The dress code requires “men to wear dark suits, white shirts, a tie, and dark socks and shoes, while women had to wear a conservative skirt suit or dress.”[35] Harris Funeral Homes based its dress code on “biological sex, not gender identity.”[36]
On July 31, 2013, Stephens wrote a letter to her “Friends and Co-workers” revealing her gender identity disorder.[37] Stephens also noted in the letter that beginning Aug. 26, 2013, she planned to work “as [her] true self . . . in appropriate business attire,” indicating her plan to begin wearing conservative skirt suits or dresses as required by the dress code for female employees.[38] Stephens provided her letter to Rost and other employees of Harris Funeral Homes.[39] A few weeks after the delivery of the letter, , Rost contacted Stephens and told her the plan was “not going to work out” and that her “services would no longer be needed.”[40] Stephens contends Harris Funeral Homes discharged her because of her gender identify.[41] Harris Funeral Homes contends it discharged Stephens due to her “insistence on violating the sex-specific dress code.”[42]
The Sixth Circuit unanimously held in Stephens’ favor,[43] holding “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”[44]
The Legal Arguments: The Simple Test & Gender Stereotyping
The Simple Test
All three cases principally rely on twin theories of discrimination: by definition and as a form of gender-based stereotyping.[45] “By definition” posits that when employers discriminate based on gender, for a trait not related to work, such discrimination is “because of . . . sex.”[46] Both Bostock and Zarda rely on Phillips v. Martin Marietta Corporation[47] and Newport News Shipbuilding & Dry Dock Company v. Equal Employment Opportunity Commission[48] to illustrate “by definition” discrimination. In Phillips, an employer refused to hire “women with school-aged children.”[49] The employer argued it had not discriminated “because of . . . sex” as it employed a large number of women.[50] The Supreme Court spurned the employer’s argument, reasoning that employing men, but not women, with school-aged children was a form sex discrimination by introducing “characterizations of the . . . domestic roles of the sexes” into hiring decisions.[51] Similarly, in Newport News, an employer’s healthcare plan provided less benefit to pregnant female spouses of male employees than it did for others (male spouses of female employees and non-pregnant female spouses of male employees).[52] The Court held that this was discrimination “because of . . . sex” with the same logic of an employer discriminating against a subset of one gender, but not the other, based on a non-work related trait.[53] Bostock and Smith reduce Phillips and its progeny to a “simple test,” if an employee would be treated differently with a different gender, then an employer discriminated “because of . . . sex.”[54][55]
Both Bostock and Zarda argue that employment discrimination based on same-sex relationships amounts to the same “sub-set” type discrimination.[56] Bostock and Zarda contend that choice in partner in general is a trait not related to work, so when an employer discriminates against a male employee with a male partner but not a female employee with a male partner that is discrimination “because of . . . sex” by definition.[57] Stephens also relies on the “simple test” with a simple assertion: Had Stephens been born a woman, no discrimination would take place if she dressed as a woman.[58]
Gender Stereotyping
The employees derive the gender-based stereotyping theory from Price Waterhouse v. Hopkins.[59] In a plurality opinion, the Court concluded that the accounting firm discriminated against Hopkins “because of . . . sex” by claiming she was too “macho” for partnership.[60]
Bostock and Zarda assert that discriminating against an employee on the basis of same-sex a relationship is a form of gender-based stereotyping.[61] Firing a male employee for dating a man or a female employee for dating a woman “rests on normative beliefs about how a person of a particular sex should behave.”[62] Title VII protects not “sex-specific to men or women,” but “sex-based as to the individual employee,” and that further Title VII “focuses on fairness to individuals rather than classes.”[63]
Stephens’ argument is analogous to Price Waterhouse.[64] Stephens contends Harris Funeral Homes fired her for “not complying with its sex stereotypes about women,” and that Rost “objected that [her] appearance and assigned sex at birth made her too masculine for a woman.”[65] Under Stephens’ analogy, both Price Waterhouse and Harris Funeral Homes discriminated against an employee “because it considered her insufficiently feminine for a woman.”[66]
A Litmus Test for the Supreme Court
The employees also contend that nothing in Title VII precludes protection on the basis of sexual orientation or sexual identity, and that the Court has held same-sex discrimination to fall within “because of . . . sex.”[67] Bostock and Zarda also offer theory of association discrimination, drawing analogy between sexual-orientation discrimination and race-related discrimination.[68]
Generally, the employers contend that discrimination on the basis of sexual orientation or gender identity falls outside the scope of Title VII protection.[69] Specifically, they argue that Title VII, as originally drafted, provides protection on the basis of gender itself as a trait, not sexual orientation or gender identity.[70] Therefore, under this paradigm, finding discrimination on the basis of sexual orientation or gender identity introduces new protections under Title VII that Congress–– and not the courts––should implement.[71]
In
combination, these cases provide a litmus test for a Supreme Court which has
drifted more conservatively in recent years and the opinions, which are not
projected for publication until Spring 2020 will be monumental.[72] While both the employees and employers
provide analysis on the plain meaning of Title VII protection, amicus briefs
fill the dockets with policy arguments both for and exist both sides.[73] With oral arguments concluded, a Michigan
funeral director, a Georgia county bureaucrat, the family surviving a New York
skydiving instructor, and a nation wait to see whether protection “because of .
. . sex” will advance or retreat.
[1] Ian Millhiser, The Supreme Court Showdown over LGBTQ Discrimination, Explained, Vox (Oct. 8, 2019), https://www.vox.com/2019/10/2/20883827/supreme-court-lgbtq-discrimination-title-vii-civil-rights-gay-trans-queer.
[2] Monthly Argument Calendar October 2019, Supreme Court of the United States (last visited Oct. 5, 2019), https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalOctober2019.pdf.
[3] Bostock v. Clayton County, No. 17-1618 (U.S. 2019); Altitude Express, Inc. v. Zarda, No. 17-1623 (U.S. 2019), https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1618.html.
[4] R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18-107 (U.S. 2019), https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-107.html.
[5] See Millhiser, supra note 1.
[6] 42 U.S.C. § 2000e2(a)(i) (2012).
[7] See Millhiser, supra note 1.
[8] Brief for Petitioner at 4, Bostock v. Clayton County (June 26, 2019) (No. 17-1618), https://www.supremecourt.gov/DocketPDF/17/17-1618/104212/20190626161040839_38089%20pdf%20Sutherland%20I%20-%20Brief%20to%20File.pdf.
[9] Id.
[10] Id. at 5.
[11] Id.
[12] Id.
[13] Brief for Respondent at 2, Bostock v. Clayton County (Aug. 16, 2019) (No. 17-1618), https://www.supremecourt.gov/DocketPDF/17/17-1618/112668/20190816164820200_38344%20pdf%20Buechner%20Jr.pdf.
[14] Id.
[15] Brief for Petitioner, supra note 8, at 6.
[16] Brief for Respondent, supra note 13, at 3.
[17] Brief for Petitioner, supra note 8, at 6.
[18] Vanessa Chestnut, Plaintiff at Center of Landmark Gay-rights Case Never Got To See His Victory, NBC News (March 6, 2018), https://www.nbcnews.com/feature/nbc-out/donald-zarda-man-center-major-gay-rights-case-never-got-n852846.
[19] Opening Brief for Respondents at 3, Altitude Express, Inc. v. Zarda (June 26, 2019) (No. 17-1623), https://www.supremecourt.gov/DocketPDF/17/17-1618/104155/20190626114351461_17-1623bs.pdf.
[20] Id.
[21] Brief for Petitioners Altitude Express, Inc., et al. at 2, Altitude Express, Inc. v. Zarda (Aug. 16, 2019) (No. 17-1623), https://www.supremecourt.gov/DocketPDF/17/17-1618/112667/20190816164240762_Brief%20for%20Petitioners%20Altitude%20Express%20Inc%20and%20Ray%20Maynard.pdf.
[22] Opening Brief for Respondents, supra note 19, at 4.
[23] Id.
[24] Id. at 3-4.
[25] Brief for Petitioners Altitude Express, Inc., et al., supra note 21, at 2.
[26] Opening Brief for Respondents, supra note 19, at 4.
[27] See Chestnut, supra note 18.
[28] Id.
[29] Id.
[30] Brief for the Federal Respondent in Opposition at 3, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (Oct. 24. 2018) (No. 18-107), https://www.supremecourt.gov/DocketPDF/18/18-107/67913/20181024152750333_18-107%20RG%20GR%20Harris%20Funeral%20Homes.pdf.
[31] Brief in Opposition for Respondent Aimee Stephens at 3, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (Oct. 25, 2018) (No. 18-107), https://www.supremecourt.gov/DocketPDF/18/18-107/67903/20181024150403351_18-107%20RGGR%20Harris%20Funeral%20Homes%20v%20EEOC%20Brief%20in%20Opposition.pdf.
[32] Brief for Petitioner at 5, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (Aug. 16, 2019) (No. 18-107), https://www.supremecourt.gov/DocketPDF/18/18-107/112573/20190816105923793_18-107%20Brief%20for%20the%20Petitioner.pdf.
[33] Id. at 6.
[34] Id.
[35] Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 4.
[36] Brief for Petitioner, supra note 32, at 7.
[37] Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 5. In her letter, Stephens revealed, “I have a gender identity disorder that I have struggled with my entire life. I have managed to hide it very well all these years . . . . With the support of my loving wife, I have decided to become the person that my mind already is.” Id. at 5-6.
[38] Id. at 6.
[39] Brief for Petitioner, supra note 32, at 9.
[40] Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 6; Brief for Petitioner, supra note 32, at 9.
[41] Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 6.
[42] Brief for Petitioner, supra note 32, at 10.
[43] Id.
[44] Brief for the Federal Respondent in Opposition, supra note 30, at 6.
[45] Brief for Petitioner, supra note 8, at 10; Opening Brief for Respondents, supra note 19, at 10-11; Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 15-16.
[46] See, e.g., Brief for Petitioner, supra note 8, at 13.
[47] 400 U.S. 542 (1971).
[48] 462 U.S. 669 (1983).
[49] Phillips, 400 U.S. at 543.
[50] Id.
[51] Id. at 545 (Marshall, J., concurring).
[52] Newport News, 462 U.S. at 678.
[53] Id. at 683-84.
[54] See Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978).
[55] Brief for Petitioner, supra note 8, at 15; Opening Brief for Respondents, supra note 19, at 20.
[56] Brief for Petitioner, supra note 8, at 13 Opening Brief for Respondents, supra note 19, at 19.
[57] Brief for Petitioner, supra note 8, at 13 Opening Brief for Respondents, supra note 19, at 19.
[58] Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 23.
[59] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
[60] Id. at 258. Ann Hopkins, a senior associate, was denied the opportunity for partnership until she began to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry. Id. at 235.
[61] Brief for Petitioner, supra note 8, at 23; Opening Brief for Respondents, supra note 19, at 23.
[62] Opening Brief for Respondents, supra note 19, at 23.
[63] Brief for Petitioner, supra note 8, at 28.
[64] Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 30.
[65] Id.
[66] Id. at 31.
[67] Brief for Petitioner, supra note 8, at 29, 34; Opening Brief for Respondents, supra note 19, at 28, 41; Brief in Opposition for Respondent Aimee Stephens, supra note 31, at 36, 42.
[68] See, e.g., Brief for Petitioner, supra note 8, at 40; Opening Brief for Respondents, supra note 19, at 31.
[69] Brief for Respondent, supra note 13, at 6; Brief for Petitioners Altitude Express, Inc., et al., supra note 21, at 8; Brief for Petitioner, supra note 32, at 14.
[70] Brief for Respondent, supra note 13, at 6; Brief for Petitioners Altitude Express, Inc., et al., supra note 11, at 10; Brief for Petitioner, supra note 32, at 17.
[71] Brief for Respondent, supra note 47, at 6; Brief for Petitioners Altitude Express, Inc., et al., supra note 21, at 52; Brief for Petitioner, supra note 32, at 45.
[72] See, e.g., Millhiser, supra note 1; Robert Barnes & Ann E. Marimow, Trump Nominees Could Play Pivotal Role as Supreme Court Decides on Protections for Gay, Transgender Workers, The Washington Post (Oct. 8, 2019), http://www.washingtonpost.com/politics/courts_law/supreme-court-will-consider-whether-gay-transgender-workers-are-protected-by-federal-law/2019/10/07/b0c4b198-e966-11e9-85c0-85a098e47b37_story.html.
[73] See., e.g., Anna North, How the LGBTQ Rights Cases Before the Supreme Court Affect All Americans, Vox (Oct. 8, 2019), https://www.vox.com/2019/10/8/20903088/supreme-court-lgbt-lgbtq-case-scotus-stephens; Gay Workers Not Covered by Civil Rights Law, Trump Admin Tells Supreme Court, NBC News (Aug. 23, 2019), https://www.nbcnews.com/feature/nbc-out/gay-workers-not-covered-civil-rights-law-trump-admin-tells-n1045971.
