Sex Discrimination in Employment: Zarda, Bostock, and R.G. & G.R. Harris Funeral Homes
Arguments: October 8, 2019
Is discrimination on the basis of sexual orientation or gender identity sex discrimination?
The Supreme Court is set to hear three cases this term to decide whether Title VII’s protections against sex discrimination include discrimination based on sexual orientation or gender identity.
What is sexual orientation? A person’s sexual orientation refers to the sex or gender of the people that a person is romantically and sexually attracted to. The most common sexual orientations are heterosexual (an attraction to people of a different sex), homosexual (an attraction to people of the same sex), and bisexual (an attraction to people of both the same and different sexes). We all have a sexual orientation.
What is gender identity? Gender identity refers to a person’s internal sense of where that person falls on the gender spectrum—female, male, nonbinary, somewhere else on the spectrum. We all have a gender identity and we convey it to the world through our clothing, hairstyle, and other features. If a person’s internal sense of gender identity and the sex assigned to the person at birth (based on external sex organs) are the same, the person’s gender identity is cisgender. If a person’s internal sense of gender identity and the sex assigned to the person at birth are different, the person is transgender (commonly written as trans or trans*).
What is sex stereotyping? Sex stereotyping is the overgeneralization of how a man or woman should dress or act, and what kinds of jobs and roles they should hold within families and society. The concept of sex stereotyping first entered the legal world through the Supreme Court’s decision in Price Waterhouse v. Hopkins. In that 1989 decision, the Court held that Price Waterhouse’s decision not to promote Ms. Hopkins to partner because she was not sufficiently feminine was a form of sex discrimination prohibited by Title VII.
Title VII and the EEOC
Title VII of the Civil Rights Act of 1964 prohibits discrimination “against any individual … because of such individual’s … sex.” Until 2012, the general understanding in the legal community was that sex referred only to biological sex—in other words, whether a person is male or female.
In 2012, the EEOC held in Macy v. Department of Justice, that discrimination based on gender identity is sex discrimination. The Commission reached this conclusion by finding that gender identity discrimination may involve sex stereotyping, that a “real” woman should be born with certain reproductive organs, and that is a form of prohibited discrimination.
Three years later, the Commission held in Baldwin v. Department of Transportation that sexual orientation discrimination is a form of sex discrimination. The EEOC found this type of discrimination falls within the coverage of Title VII for three reasons: first, sexual orientation can only be defined by taking into account the sex of the employee and therefore is connected to sex. Second, sexual orientation discrimination is a form of associational discrimination. The Commission drew a parallel to the Supreme Court’s decision in Loving v. Virginia, in which it struck down state laws that barred interracial marriage. And third, the EEOC found that sexual orientation discrimination is a form of sex stereotyping, as it relies on the idea that a man should only be interested in dating women, and a woman should only be interested in dating a man.
Why aren’t the Macy and Baldwin decisions the end of the question? The Commission’s decisions only address the rights of federal employees. The cases before the Supreme Court this term involve employees working for private companies and a county government.
The Court has consolidated Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, Georgia for arguments and decisions. Both cases address the issue of sexual orientation discrimination. In Zarda, the Second Circuit held that sexual orientation discrimination is covered by Title VII’s prohibition against sex discrimination. Just as the EEOC did, the Second Circuit found that sexual orientation cannot be defined without reference to sex. Relying on the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, Inc., the Second Circuit concluded that if the employer takes the action because of sex, the action falls within Title VII’s protections, and if sexual orientation cannot be defined without taking sex into account, an action taken because of an employee’s sexual orientation is an action taken because of the employee’s sex. In Bostock, the Eleventh Circuit concluded that it was bound by prior circuit precedent, from 1979, finding that sexual orientation does not fall within Title VII’s definition of sex.
The Court is also set to hear arguments in R.G. & G.R. Harris Funeral Homes v. EEOC. In that case, the Sixth Circuit held that discrimination based on gender identity is sex discrimination. The circuit court reached this in two ways. First, it held that gender identity discrimination is a form of sex stereotyping. Second, the court held that gender identity cannot be defined without taking sex into account—whether through simply defining the employee’s sex or by taking into account the change in the employee’s sex from birth-assigned sex to expressing the person’s true gender identity.
The employees in all three cases have argued that their employers violated Title VII when they fired them. They argue that discrimination based on sexual orientation or gender identity inherently takes the employee’s sex into account and therefore is discrimination “because of . . . sex.” They also argue that these forms of discrimination are instances of sex stereotyping, which the Court concluded was a violation of Title VII 30 years ago. They also argue it's immaterial that Congress may not have considered sexual orientation or gender identity in 1964, because the Court concluded in Oncale that the correct question is not whether Congress contemplated the specific facts—in that case, same-sex sexual harassment—but rather whether the action occurred because of sex.
The employers all argue that finding that Title VII prohibits discrimination based on sexual orientation or gender identity is an impermissible and inappropriate expansion of Congress’s intent in passing Title VII. The U.S. government has filed briefs in these cases arguing that Title VII does not apply to either sexual orientation discrimination or gender identity discrimination.
The Supreme Court will hear arguments on October 8, 2019.
Meghan Drost is a Senior Associate with Wilkenfeld, Herendeen & Atkinson in Washington, DC, focusing on employment discrimination litigation. She also serves as an instructor with the Federal Employment Law Training Group, educating federal employees on substantive and procedural issues in federal employment.