The U.S. Supreme Court today announced it will review three cases that address whether discrimination on the basis of sexual orientation or gender identity violates the Civil Rights Act of 1964, the federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.
The three cases include: Altitude Express v. Zarda, a New York case where the U.S. Court of Appeals for the Second Circuit ruled in favor of the estate of a skydiving instructor who was fired because he was gay; Bostock v. Clayton County, where the U.S. Court of Appeals for the Eleventh Circuit ruled against a Clayton County, Georgia, child welfare services coordinator fired when his employer discovered he was gay; and: R.G. & G.R. Harris Funeral Homes v.EEOC, a Michigan case brought by the ACLU and ACLU of Michigan where the U.S. Court of Appeals for the Sixth Circuit ruled in favor of a transgender woman fired from her job as a funeral director when she informed her boss she intended to transition. Lambda Legal filed a friend-of-the-court brief and argued the Zarda case before the full Second Circuit in September 2017. Lambda Legal also filed fried-of-the-court briefs in the Georgia and Michigan cases..
“After many years of courts grappling with these questions, the Supreme Court has decided to step in and resolve whether discrimination against someone for their sexual orientation or gender identity is a form of sex discrimination prohibited by the Civil Rights Act. Multiple courts have understood that discrimination against someone for being transgender or being in a same-sex relationship is a form of discrimination because of sex, plain and simple. There is no reason for the Supreme Court to carve LGBT people out of a law that by its own terms protects us from discrimination,” said Greg Nevins, Senior Counsel and Workplace Fairness Program Strategist for Lambda Legal. “Title VII obviously requires equal treatment of men and women, so it was wrong to treat Donald Zarda [or Gerald Bostock] differently because of his attraction to men, when a Donna Zarda or Geraldine Bostock would not have endured discrimination for liking men. And when Aimee Stephens’ employer fired her after learning that she was undertaking a gender transition, her employer discriminated against her because of sex. These arguments couldn’t be more straight-forward, and we are hopeful that the Court will confirm that they are correct.”
In recent years, an increasing number of courts have recognized that the federal law prohibiting sex discrimination also reaches claims of discrimination based on sexual orientation and gender identity, but there remains a split among courts across the country. The U.S. Courts of Appeals for the Second Circuit and the Seventh Circuit both convened en banc (meaning all active judges, not just a three court panel) to reconsider prior decisions holding against coverage, and in both cases, the courts agreed that discrimination on the basis of sexual orientation is a form of sex discrimination. By contrast, the Eleventh Circuit has rejected multiple petitions to convene en banc to reconsider old precedent.
Lambda Legal has been at the center of this work for many years, serving as counsel of record in the Seventh Circuit case (Hively), and by arguing as amicus before the Second Circuit (in Zarda). We were counsel of record in Evans v. Georgia Regional Hospital in the Eleventh Circuit, and won a landmark victory on behalf of a Georgia state employee fired for being transgender in Glenn v. Brumby, also in the Eleventh Circuit. And since the start of 2019, we have presented arguments as either party counsel or amicus on these questions in the Third, Fifth, Eighth, and Tenth Circuits.
These cases are part of Lambda Legal’s larger effort to secure equal employment opportunity for LGBT people and everyone living with HIV. For example, we have sued on behalf of people living with HIV denied employment or promotion (Harrison v. Mattis, Doe & Voe v. Mattis and Pierce v. Ackal), and are currently challenging the federal government’s ban on military service by transgender people (Karnoski v. Trump). We also have multiple lawsuits challenging discrimination in employer-provided health insurance plans (Kadel v. Folwell, Fletcher v. State of Alaska, Simonson v. Oswego County). Lambda Legal also launched a public education campaign, Out at Work, to raise awareness among LGBT people about their rights under federal law, and to highlight the message that all people have the right to a job with dignity, free from repercussions for who they are or whom they love.
More information about Lambda Legal’s work on employment protections is available here: lambdalegal.org/issues/employment-and-rights-in-the-workplace.