While we were catching up with local and employment labor issues this month, two important cases made their way to oral arguments in front of the U.S. Supreme Court. In Bostock v. Clayton County, Georgia, the plaintiff is asking the Court to consider the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of sex” under Title VII. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, the question of whether discrimination based on gender identity is also prohibited under Title VII.
In Bostock, the plaintiff has alleged he was terminated from his job because of his sexual orientation, his participation in a gay recreational softball league, and his promotion of volunteer opportunities with the County to league members. In Harris, when the plaintiff was hired 2008, she identified as male, but announced to his employer in 2013 she would start identifying as a woman. The plaintiff, Aimee Stephens, was terminated for what Harris deemed “dress-code violations” and its belief the change “disrupted the grieving and healing process” of “clients mourning the loss of their loved ones” at the funeral home.
The lower courts in the Bostock case determined that sexual orientation is not protected classes within the language of Title VII. However, the district court and the Sixth Circuit Court of Appeals ruled for the EEOC in the Harris case. The court found that Stephens was fired because of her failure to conform to sex stereotypes, and that the plaintiff could pursue a claim that she was discriminated against on the basis of her transgender and transitioning status, as those statuses are directly related to the plaintiff’s sex. This decision came directly from the Supreme Court’s Price Waterhouse decision, which stated “gender must be irrelevant to employment decisions.”
In its defense, the employer stated his decision to fire the plaintiff because the plaintiff was “no longer going to represent himself as a man” and “wanted to dress as a woman.” It is unclear why the employer used that argument as a defense, but the court found that reasoning fell squarely within the purview of Title VII’s prohibition of discrimination on the basis of sex. In regard to the plaintiff’s transgender status, the court found that to fire and employee based on his or her transgender status necessarily involved some relation to the employee’s sex, and “discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
Those who occasionally read Supreme Court opinions may remember the Court’s decision in Oncale v. Sundowner Offshore Services, Inc. In that unanimous decision (can you believe the Supremes once had unanimous decisions??) the Court stated that in regard to gender discrimination, Title VII is only concerned about discrimination because of sex. The Court held, “Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue…actually constituted ‘discrimination…because of…sex.’” It is possible for these arguments to apply to both cases being decided – we’ll have to see if the court views them differently, as the lowers courts seemed to have. Though most lower court decisions view sexual orientation differently under Title VII, a decision in favor of the employer is not a foregone conclusion by any means.
Of course, employers in Minnesota and many other states do not have to worry too much about the decision of the Supreme Court. Many state anti-discrimination laws throughout the country have already included both gender identity and sexual orientation as protected classes. Nonetheless, it will be interesting to see the logic used by the Supreme Court to either extend the protections of the federal anti-discrimination law or close off any opportunity for further expansion.
The Wiley Law Office will stay abreast of any decisions coming out of the Supreme Court relating to anti-discrimination laws. If you or your organization need assistance in understanding the federal or state antidiscrimination laws, contact the Wiley Law Office, for legal advice that works.