By Erin Hantman Weiss, Esq.
On October 8, 2019, the U.S. Supreme Court heard oral arguments in the following cases: Bostock v. Clayton County, Georgia (Case No. 17-1618); Altitude Express, Inc., et al. v. Zarda, et al. (Case No. 17-1623); and, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al. (Case No. 18-107). In all three of these cases, employees alleged unlawful discrimination on the basis of sex in contravention of Title VII of the Civil Rights Act of 1964.
Ted Eytan / CC BY-SA – creativecommons
By way of background, the Bostock and Zarda cases involved employees who were fired once their respective employers learned of these employees’ sexual orientation. The U.S. Court of Appeals for the Eleventh Circuit dismissed the Bostock case, holding that Title VII does not prohibit an employer from firing an employee due to the employee’s sexual orientation. On the other hand, the U.S. Court of Appeals for the Second Circuit held that the Zarda case could proceed because discrimination on the basis of an employee’s sexual orientation violated Title VII.
The R. G. & G. R. Harris Funeral Homes, Inc. case involved an employee who was fired for being transgender. This case was heard by the U.S. Court of Appeals for the Sixth Circuit, which reached a decision similar to the Second Circuit in Zarda, and held that Title VII prohibits an employer from firing an employee for being transgender.
Since there was a conflict among the federal courts of appeal, the U.S. Supreme Court granted requests to hear these cases in order to determine the scope of Title VII’s protections against sex discrimination. More specifically, the U.S. Supreme Court was tasked with determining whether an employer violates Title VII of the Civil Rights Act of 1964 by firing an employee due to the employee’s sexual orientation, or based on the fact that the employee is transgender.
In a 6-3 decision issued on June 15, 2020, the U.S. Supreme Court held that an employer who fires an employee because of the employee’s sexual orientation, or because the employee is transgender, violates Title VII of the Civil Rights Act of 1964.
In its opinion, the Court noted that Title VII prohibits discrimination in employment because of an individual’s sex, and evaluated the “ordinary public meaning” of the statute’s terms at the time the statute was enacted. In performing such an evaluation, the Court arrived at the following rule: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”
In the context of the above-cited rule, the Court considered whether discrimination due to an employee’s sexual orientation, or because an employee is transgender, amounts to discrimination because of sex. As the Court explained, there cannot be one without the other. When an employer fires an employee because of an employee’s sexual orientation, or because an employee is transgender, this employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.”
As the Court discussed, even where an employer’s challenged action or decision involves other factors, if such action or decision is based in part on an employee’s sex, then the employer violates Title VII. The Court also commented that it is of no consequence that an employer treats a group of men and a group of women the same; the employer violates Title VII if an individual employee was treated differently because of this employee’s sex.
The U.S. Supreme Court’s opinion of June 15, 2020 also noted that while there are many federal and state laws that use language similar to Title VII and prohibit discrimination because of sex, such laws were not before the Court and thus were not the subject of this decision. Along similar lines, the Court indicated that the issue of religious liberty—including the exception for religious organizations articulated in Title VII and other laws such as the Religious Freedom Restoration Act of 1993—was not raised in these cases.
In closing, the U.S. Supreme Court reiterated that the language prohibiting sex discrimination in Title VII of the Civil Rights Act of 1964 is broad, and that as a result of this breadth, an employer who fires an employee because of that individual’s sexual orientation, or because the individual is transgender, violates this law.
In light of this recent decision from the U.S. Supreme Court, it is anticipated that there will be other cases filed that involve the interpretation of other federal and state laws that use language similar to Title VII in prohibiting sex discrimination.
*Notes: There were two dissenting opinions related to these cases also issued on June 15, 2020; the dissenting opinions are not discussed in this summary, and instead this summary focuses on the majority opinion of the Court. Moreover, any quoted language included in this summary is from the Court’s majority opinion issued on June 15, 2020, which is currently cited as Bostock v. Clayton County, Georgia, 590 U. S. ____ (2020).
About the Author:
Erin Hantman Weiss is an attorney at Legal Aid Service of Broward County, Inc., where she represents low-income tenants over the age of 50 who are facing imminent homelessness. While at Legal Aid, Ms. Weiss has also represented small businesses in transactional legal matters, as well as non-profit affordable housing developers in Broward County who work to establish and preserve affordable housing in the local community. In the South Florida community, Ms. Weiss frequently presents to staff of nursing homes, assisted living facilities, adult day care centers, shelters and community organizations about unique considerations for persons aging with HIV, the relationship between HIV and housing stability, and the LGBT aging community’s experiences and expectations with respect to senior housing options
*Disclaimer: This article is for general informational purposes only. This article does not constitute legal advice. Accessing and/or reviewing this article does not create an attorney-client relationship with Legal Aid Service of Broward County, Inc. or any of its employees.