Tuesday is a big day at the U.S. Supreme Court as the justices hear oral arguments on three Title VII cases. Bostock v. Clayton County and Altitude Express v. Zarda (argued together) both ask whether Title VII covers sexual orientation discrimination claims. The Court will also hear R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which asks whether the scope of Title VII protection extends to transgender people.
In Bostock, Gerald Bostock worked as a social worker in Clayton County, GA. Although he received fairly good performance reviews, he was subsequently fired when his employer discovered he was gay. In Altitude Express, Donald Zarda was a skydiving instructor. Usually, new skydivers must be attached to experienced instructors while diving. Zarda would tell a woman not to worry about being strapped to him because he was gay. Zarda’s employer ultimately fired him as well. The 2nd Circuit Court of Appeals ruled in favor of Zarda finding that Title VII protects employment discrimination based on sexual orientation, but the 11th Circuit in Bostock did not, which created a circuit split.
Both Bostock and Zarda argue that the definition of “sex” within the scope of Title VII’s protected classes (race, color, religion, sex, and national origin) includes the protection of sexual orientation from employer discrimination. They reason that if a woman were hired for the same position, that woman’s expression of sexual interest in men would not prompt either employer to terminate her employment, but they did with Bostick and Zarda—both men.
In R.G. & G.R. Harris Funeral Homes, Inc., Aimee Stephens was a funeral home director. She identified as a man in 2007 when she was hired. By 2013, she informed her employer she was self-identifying as a woman and undergoing sexual reassignment surgery. The owner then fired her. Stephens argues—similar to Bostock and Zarda—that the definition of sex includes transgender people. Stephens further argues that employers may not force workers to conform to gender stereotypes at issue in Price Waterhouse v. Hopkins, which is discussed below.
This interpretation is not out of the norm of precedent. The Supreme Court in Price Waterhouse allowed a defense against employer liability for “mixed-motive” discrimination cases. An employer may avoid liability if they can show their employment decision would have been made without discriminatory motive. In Price Waterhouse, a female executive filed suit against the accounting firm for not promoting her because she was not conforming to female-specific attire and social interactions. The case was remanded so that the lower court could apply the new standard.
In 1998, the Supreme Court in Oncale v. Sundowner Offshore Services, Inc., found a cause of action for same-sex harassment in the workplace. Joseph Oncale was an oil rig worker that experienced sexually related verbal harassment by his co-workers. Justice Scalia, writing for a unanimous majority, found that although the authors of the 1964 Civil Rights Act did not fathom that the definition of sex could include one’s sexual orientation, statutes may protect against evils that are related to the scope of the protection.
Recently, the 7th Circuit Court of Appeals in 8-3 en banc (heard before the entire bench of judges) decision ruled that federal law protects sexual orientation discrimination in Hively v. Ivy Tech Community College of Indiana. Kimberly Hively was a lesbian working part-time for the Ivy Tech Community College since 2000. Hively alleged that she was passed over for employment between 2009-2014. The Hively court emphasized their ruling would not include another protected class under Title VII but instead create a subcategory under the definition of “sex” as a protected class to encompass orientation.