Guest Post by Jack Harrison: Oral Argument in Title VII LGBT Cases Offers Few Clues on How SCOTUS Might Rule

Thanks to Jack Harrison (NKU-Chase) this terrific guest post:

Aimee Stephens, a transgender woman who worked as a funeral director, began her employment at Harris Funeral Home presenting as male, the sex she to which she was assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and that she intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.” The EEOC sued on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII.

In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, the district court held that Stephens had been subjected to sex discrimination in violation of Title VII because, consistent with Price Waterhouse v. Hopkins, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though Stephens had been the victim of sex discrimination, the funeral home had a right to terminate her under Religious Freedom Restoration Act (“RFRA”), holding that RFRA protected personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.

In 2018, the United States Court of Appeals for the Sixth Circuit reversed this decision. In its decision, the Court of Appeals moved beyond the sex stereotyping rationale of Hopkins, holding that Title VII specifically outlaws employment discrimination against transgender persons.

On Tuesday, October 8, 2019, the United States Supreme Court heard oral argument in Harris Funeral Home, addressing the question of whether Title VII’s prohibition against discrimination because of sex encompasses a prohibition against discrimination based on gender identity. On the same day, the Court also heard arguments in two other cases, one from the Second Circuit, Altitude Express v. Zarda, and one from the Eleventh Circuit, Bostock v. Clayton County, addressing the issue of whether Title VII’s prohibition against discrimination because of sex includes a prohibition against discrimination based on sexual orientation.

Before the Supreme Court, David Cole of the ACLU presented the argument on behalf of Aimee Stephens. In the opening of his argument to the Court, Cole broke the case down into its simplest terms, stating:

Aimee Stephens is a transgender woman. She was a valued employee of Harris Funeral Homes for six years, until she told her boss that she was going to live and identify as a woman.

When Harris Homes responded by firing her, it discriminated against her because of her sex for three reasons. First, in firing her for failing to conform to its owner's explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely. It can't be that Ann Hopkins would lose her case on the same facts were she transgender.

As Cole pointed out in his argument, Stephens was fired for “identifying as a woman only because she was assigned a male sex at birth.” In firing her for this reason, Harris “fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.”

While the Justices focused many questions on the issues of restrooms and athletes, neither of which were before the Court in this case, Justice Gorsuch acknowledged that, on this question, the text of Title VII was “close.” However, Justice Gorsuch raised the following concern:

At the end of the day, should he or she [the judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that --that Congress didn't think about it.

Yet, as David Cole pointed out in response to Justice Gorsuch, “federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years” and “[t]here's been no upheaval.”

In Zarda and Bostock, argued the same day as Harris Funeral Home, the Court addressed the claims of two men who asserted that they were fired from their jobs because they were gay in violation of Title VII. Donald Zarda (who died in 2014 in a base-jumping accident in Switzerland) had been working as an instructor for a skydiving company now known as Altitude Express, while Gerald Bostock had worked as a child-welfare-services coordinator in Clayton County, Georgia.

In arguing on behalf of the two men, Stanford professor Pamela Karlan also faced a number of questions by the justices regarding restrooms and dress codes, issues that were not before the Court in these cases either. In responding to these questions, Karlan pointed out that Title VII specifically addresses the situation regarding restrooms, with the central question being whether providing same-sex bathrooms denies someone an employment opportunity. As to the issue of dress codes, Karlan indicated that the justices would be forced to address the issue in future cases, no matter how they rule in these cases.

However, the primary issue raised during the oral argument in Zarda and Bostock was whether, in passing Title VII in 1964, Congress intended to bar discrimination based on sexual orientation and whether, from a textual interpretive perspective, that mattered at all. As Karlan pointed out, the Supreme Court has recognized many other claims under Title VII that Congress could not have contemplated in 1964, including both opposite-gender and same-gender sexual harassment and claims based on sex stereotyping.

Justice Gorsuch was very active in the Zarda and Bostock oral arguments, challenging arguments by counsel for the employers, Jeffrey Harris, attempting to draw a clear line between definitions of “sex” and “sexual orientation” as the basis for the termination of the employees. For example, Justice Gorsuch pushed Harris on this point:

Your response to Justice Kagan was, I need to focus on sexual orientation because that's the sole or primary causal factor here for the firing.

And I think the response from the other side is: But the statute has a more generous causal formulation, a but-for causal formulation, so perhaps you're right that, at some level, sexual orientation is surely in -- in play here. But isn't sex also in play here because of the change of the first variable? And isn't that enough? It -- you know, the statute talks about a material causal factor or some formulation like that, not the sole cause, not the proximate cause, but a cause. And one –o ne would -- in what -- in what linguistic formulation would one -- would one say that sex, biological gender, has nothing to do with what happened in this case?

Justice Gorsuch returned to this theme during the argument of U.S. Solicitor General Noel Francisco, who appeared on behalf of the federal government as a “friend of the court” supporting the employers in this case. When the Solicitor General attempted to draw a line between the meanings of sex and sexual orientation, Gorsuch again responded that at least one contributing cause of the plaintiffs’ firings here does appear to be sex.

In concluding his argument in all three cases, the Solicitor General argued that a ruling for the employees in these cases would ignore the issue of religious objections employers might have to hiring LGBT employees, while, at the same time, greatly expanding the rights of LGBTQ employees. For this reason, among others, the Solicitor General argued that this decision should be left to Congress to resolve.

Following the oral arguments in these cases, it is difficult to predict whether five votes exist for holding that Title VII’s prohibition against discrimination because of sex encompasses sexual orientation and gender identity. Based on the oral argument, it would seem that Justice Gorsuch vote might well be at play, given his acknowledgement that the text of Title VII made this a close call. This confirms the strategic decision by those who submitted briefs and amici on behalf of the employees to focus on the text of Title VII itself.

While many Americans currently believe that federal law prohibits discrimination because of sexual orientation and gender identity in the workplace, these cases make clear how far from reality that actually is. Currently LGBT employees are largely unprotected from employment discrimination. The protections that do exist are under an unpredictable patchwork of laws and policies, consisting of presidential executive orders, private employer initiatives, city and county ordinances, gubernatorial executive orders, and state legislation. Thus, discrimination in the workforce remains a constant in the lived experience of LGBT persons.

rb