The United States Supreme Court has indicated that it will finally settle the circuit-splitting issue of whether gay and transgender status falls under the protection of Title VII. The court signaled this when it agreed recently to hear three cases that have been appealed to the high court. The three cases are: Altitude Express v. Zarda; Bostock v. Clayton County, Georgia; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.
In the Altitude Express case, Zarda (through his estate, as he perished in a BASE-jumping accident after filing his lawsuit) contends that his employer fired him because of his sexual orientation. A three-judge Second Circuit panel first ruled that Zarda had no claim for sex discrimination under Title VII because sexual orientation was not covered by the law.
Then, however, the Second Circuit reversed itself in an en banc decision (which means all of the Second Circuit judges convened to hear the case as opposed to a three-judge panel). The Second Circuit then held that that sexual orientation discrimination is discrimination “because of” sex under Title VI, ruling in Zarda’s favor. The Second Circuit’s decision aligns with the decision from the Seventh Circuit in Hively v. Ivy Tech.
Zarda’s case is also particularly noteworthy not only because of the important contemporary legal issue it presents, but also because it exposed a rare public divide between two federal agencies (the Equal Employment Opportunity Commission and the Department of Justice) while under review at the Second Circuit. . Both agencies filed supplemental briefs in the case, with the EEOC arguing that Title VII applies to sexual orientation while the DOJ argued that it does not apply. It will be particularly instructive to see whether the agencies continue to take opposing stances before the Supreme Court.
Like the Zarda case, the second case—Bostock v. Clayton County, Georgia—presents the issue of whether sexual orientation is protected under Title VII. In the Bostock case, a three-judge panel from the Eleventh Circuit held that that Title VII did not prohibit discrimination based on sexual orientation. Bostock requested that that the full court hear the case en banc as in Zarda, but the court declined to do so.
The third case, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., is a case brought by plaintiff Aimee Stephens, a transgender woman who worked as a funeral director in Michigan. She presented as a male when she started her job, but then told her supervisor several years later that she was planning to transition to a woman and would start wearing women’s clothes to work. She was fired shortly after that.
Her supervisor said he fired her because Stephens “was no longer going to represent himself as a man.” The supervisor stated in the case that he believes gender transition “violat[es] God’s commands” since “a person’s sex is an immutable God-given fit.”
The EEOC sued on Stephens’ behalf in federal district court in Michigan, claiming discrimination in violation of Title VII. The district court held Stephens was discriminated against because it engaged in sex stereotyping, but that the employer was protected by the Religious Freedom Restoration Act. Stephens appealed.
The Sixth Circuit agreed with Stephens that Title VII bars employment discrimination against transgender people because: (1) transgender discrimination is gender stereotyping; and (2) transgender discrimination is inherently sex discrimination since such a decision must be “motivated, at least in part, by the employee’s sex.” The Sixth Circuit then held that the employer was not protected by the Religious Freedom Restoration Act, reversing the district court.
As these cases proceed before the Supreme Court, we will continue to monitor and update readers.