CIVIL RIGHTS
Huge 6-3 Win in Title VII Employment Bias Cases!
Gorsuch, Robert join liberals in fi nding 64 Civil Rights Act protects LGBTQ Americans
BY PAUL SCHINDLER
In an enormous victory for
the rights and dignity of LGBTQ
Americans, the United
States Supreme Court today
handed down decisions in three
cases that found that the Title VII
prohibition on employment discrimination
based on sex extends
to sexual orientation and gender
identity discrimination claims.
“An employer who fi res an individual
merely for being gay or
transgender violates Title VII,” the
court majority ruled in a 6-3 ruling,
in which Justice Neil Gorsuch
wrote the majority opinion, joined
by Chief Justice John Roberts and
Justices Ruth Bader Ginsburg, Stephen
Breyer, Sonia Sotomayor, and
Elena Kagan. The dissenters were
Justices Clarence Thomas, Samuel
Alito, and Brett Kavanaugh.
“Today, we must decide whether
an employer can fi re someone
simply for being homosexual or
transgender,” Gorsuch wrote for
the majority. “The answer is clear.
An employer who fi res an individual
for being homosexual or
transgender fi res that person for
traits or actions it would not have
questioned in members of a different
sex. Sex plays a necessary and
undisguisable role in the decision,
exactly what Title VII forbids.”
Two of the three cases involved
gay men fi red by their employers —
Bostock v. Clayton County, Georgia,
and Altitude Express v. Zarda.
These two cases were consolidated
for argument this past October 8.
Gerald Lynn Bostock claimed he
was fi red by the Clayton County
Juvenile Court System, where he
worked in child welfare services,
because of his sexual orientation.
The trial court dismissed his
claim, and the Atlanta-based 11th
Circuit Court of Appeals affi rmed
that dismissal based on a 1979 circuit
precedent that Title VII does
not forbid discrimination against
gay people.
In the Altitude Express case,
Donald Zarda claimed that he was
fi red by the now-defunct skydiving
company due at least in part to his
The late Aimee Stephens, whose workplace discrimination case was one of three before the Supreme
Court, with James Esseks, the director of the LGBT & HIV Project at the American Civil Liberties
Union, in Washington on the day of the oral arguments.
sexual orientation. A federal trial
court in New York, applying precedents
from the Second Circuit
Court of Appeals, rejected his Title
VII claim. The Court of Appeals,
however, in an en banchearing
of the full Second Circuit bench,
overruled numerous of its earlier
precedents and found that the Title
VII claim should not have been
dismissed since that law applies to
sexual orientation discrimination.
After initiating his lawsuit, Zarda
died in a skydiving accident, and
the case has been carried forward
by his estate.
The third case heard by the high
court on October 8 and argued separately
— R.G. & G.R. Harris Funeral
Homes v. EEOC — involves
a transgender Michigan woman,
Aimee Stephens, dismissed from
her job as a funeral director after
she announced plans to transition.
Tragically, Stephens, who was 59,
died on May 12, just weeks before
the ruling came down.
When the federal Equal Employment
Opportunity Commission
(EEOC), the agency responsible
for overseeing Title VII enforcement,
sued the funeral homes under
Title VII, owner Thomas Rost
voiced religious objections to gender
transition and claimed he was
free of liability under the Religious
Freedom Restoration Act (RFRA).
Stephens intervened in that case
DONNA ACETO
as a co-plaintiff with the EEOC,
which at the time had a majority
of members appointed by President
Barack Obama.
The trial judge found that Title
VII had been violated, but that
RFRA protected Harris Funeral
Homes from liability. The Cincinnati
based Sixth Circuit Court of
Appeals affi rmed the trial court’s
ruling on the Title VII violation but
reversed on the question of RFRA,
fi nding that complying with Title
VII would not substantially burden
the funeral homes’ free exercise of
religion. In concluding that Title
VII had been violated, the Sixth
Circuit relied not only on its ruling
in a 2004 case, under which it
found Smith to be the victim of impermissible
sex stereotyping, but
also concluded that gender identity
discrimination is in and of itself a
form of sex discrimination under
Title VII.
Pamela Karlan, co-director of
the Stanford Law School Supreme
Court Litigation Clinic, argued on
behalf of the two fi red gay men.
Karlan, while clerking for the late
Justice Harry Blackmun in 1986,
wrote his dissent in Bowers v.
Hardwick, when a bare majority
of the court upheld the constitutionality
of a Georgia sodomy law.
She also was on Edie Windsor’s legal
team in 2013 in the case that
brought down the federal Defense
of Marriage Act.
David Cole, the national legal
director of the American Civil Liberties
Union, argued on behalf of
Aimee Stephens.
In the October 8 Supreme Court
arguments, US Solicitor General
Noel Francisco represented the
Trump administration in arguing
that fi ring gay and transgender
people should be legal as long as
men and women are both equally
fi red for being gay or transgender.
Federal courts typically follow
Title VII precedents in interpreting
the sex discrimination provisions
in other areas of federal law — including
fair housing and equal
educational opportunity — so the
rulings in these three cases likely
have broad implications for areas
beyond simply employment discrimination.
In years immediately after Title
VII became law, the EEOC and federal
courts agreed that it offered no
jurisdiction over complaints charging
sexual orientation or gender
identity discrimination.
The lower courts’ attitudes began
to change after the Supreme
Court ruled in 1989 that evidence
of sex stereotyping by employers
could support a sex discrimination
charge under Title VII in the case
of Price Waterhouse v. Hopkins,
where the accounting fi rm denied
partnership to a woman deemed
insuffi ciently feminine in her demeanor.
No question of sexual orientation
or gender identity was a
part of that case.
In 1998, in Oncale v. Sundowner
Offshore Services, the high court
found that Title VII could apply to
a same-sex harassment case. The
late Justice Antonin Scalia’s opinion
for the court there suggested
that Title VII applied not only to
the specifi c concerns of the legislators
who enacted it, but would extend
to “comparable evils.”
In the wake of those two rulings,
federal courts in this century
began reconsidering their earlier
decisions in LGBTQ discrimination
cases. Appeals courts ap-
➤ SUPREME COURT, continued on p.15
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