BY JOSH VAN KAMPEN and LANA TIGRI
If you ask your neighbor whether it’s legal to fire a worker because he’s gay, you’ll get an unequivocal response—employers can’t do that. And if you consult public polling on the issue, there too you would find overwhelming support for providing employment protections to LGBT workers. But the federal law on this point is far from clear, and the protections that have been forged by many federal courts and by the Equal Employment Opportunity Commission, the agency tasked with enforcing the federal employment statutes, are in grave danger of being wiped away in the coming months by the U.S. Supreme Court.
It’s hard to believe that after all the progress that we have made as a country toward improving individual rights, one could be legally fired based on sexual orientation or gender identity. Yet, this can, and has, happened. In fact, that is exactly what happened to Gerald Lynn Bostock, the plaintiff in Bostock v. Clayton County, Georgia.
Bostock, a gay man, worked for Clayton County for ten years and received positive performance reviews and numerous accolades. However, shortly after he began participating in a gay softball league, he received criticism regarding his sexual orientation and was terminated. The U.S. district court in Bostock held that under precedent in the 11th U.S. Circuit Court of Appeals, which states that discharge for homosexuality is not prohibited by Title VII of the Civil Rights Act of 1964, Bostock did not have a cause of action.
Not every LGBT individual has had the same unfortunate outcome as Bostock. In EEOC v. RG & GR Harris Funeral Homes, the 6th U.S. Circuit Court of Appeals held that the defendant unlawfully discriminated against the plaintiff, a transgender woman, when it fired her after she told her employer that she would begin presenting as a woman because she is transgender. The 6th Circuit reasoned that transgender people are protected by federal sex discrimination laws.
Likewise, in Altitude Express Inc. v. Zarda, the plaintiff, Don Zarda, was fired from his job as a skydiving instructor after telling a customer that he was gay in order to make her more comfortable about being strapped together. After the defendant received a complaint regarding Zarda’s comment, he was terminated as a result. The 2nd U.S. Circuit Court of Appeals ruled in Zarda that Title VII does protect employees from discrimination based on sexual orientation.
Opposing results in Bostock, Harris Funeral Homes, and Zarda exemplify how the courts have been divided on this issue, which has caused ambiguity in the federal law as it pertains to LGBT protections in the workplace.
As it stands, there are currently no federal statutes, including Title VII, that explicitly prohibit discrimination based on sexual orientation, gender identity, or gender expression. Nonetheless, the EEOC construes Title VII’s prohibitions of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation and enforces it accordingly.
The EEOC landmark administrative ruling that governs transgender claims under Title VII comes from Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012) which held that transgender individuals may state a claim for sex discrimination. Since 2013, the EEOC has obtained approximately $6.4 million in monetary relief for individuals in voluntary resolutions of LGBT discrimination charges under Title VII. Presumably, the EEOC will continue to litigate on behalf of transgendered individuals with increased incidence given its enforcement strategy and desire to blaze the trail.
EEOC statistics from 2018 show that 1,811 LGBT complaints were filed that year. Clearly, LGBT discrimination in the workplace is an issue, and Congress has done little to assist in resolving this problem. Since 1994, the Employment Non-Discrimination Act (“ENDA”) has been introduced in every Congress. The ENDA would outlaw discrimination in hiring and employment on the basis of sexual orientation and gender identity by employers with at least 15 employees. Still, the ENDA has never garnered enough support to become law.
While typically Congress would be the body responsible for making such changes to a law, this year, the Supreme Court has an opportunity to provide clarity regarding whether employment discrimination based on sexual orientation or gender identity is prohibited employment discrimination “because of sex” as defined in Title VII. Those opposed to expanding federal protections for the LGBT community in the workplace claim that the Supreme Court would be overstepping its role if it ruled in favor of gay and transgender workers instead of allowing Congress to legislate on the matter.
After hearing arguments on Oct. 8 by the plaintiffs in Bostock and Zarda (sexual orientation) and Harris Funeral Homes (transgender) that gay and transgender workers are covered under Title VII, four of the nine justices indicated agreement with plaintiffs, while the other five appeared unconvinced. Justice Neil Gorsuch initially suggested that he may side with the plaintiffs but later seemed to err on the side of judicial modesty. This is the first time that the Supreme Court will rule on transgender rights. Rulings are expected by the end of June, and due to the close split in preliminary indications, it’s difficult to tell how this case will be resolved.
The respect afforded to the Supreme Court by the public and even by lawyers has diminished, especially after the Brett Kavanaugh confirmation hearing and filibustering of Merrick Garland. The Supreme Court now has an opportunity to rise above the stench of the divisive politics that has rendered Congress incapable of amending Title VII to explicitly cover LGBT protections. But will one or more of the Supreme Court justices roll the law back on this issue to avoid political fallout in an election year? It is a sad commentary that we are even posing that question, but we would be foolish not to. Such are the times.
Josh Van Kampen and Lana Tigri are employment law attorneys with Van Kampen Law in Charlotte.