On June 15, 2020, the Supreme Court of the United States (SCOTUS) made a landmark decision changing the lives of many in the lesbian, gay, bisexual, transgender and queer or questioning (LGBTQ+) community, making it illegal for employers to discriminate against them because of sexual orientation or gender identity. This decision broadened the meaning of “sex” within Title VII of the Civil Rights Act of 1964 (Title VII).¹ The historic decision, Altitude Express v. Zarda, was split 6-3, with Justice Neil Gorsuch writing the majority opinion. He was joined by Chief Justice John Roberts Jr. and the court’s liberal wing – Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan. Justices Brett Kavanaugh and Samuel Alito Jr. wrote separate dissents with Justice Clarence Thomas joining Alito’s dissent.

The three cases brought before SCOTUS were Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. These cases involved the sexual stereotyping of LGBTQ+ employees who claimed they were fired because of their sexual identities. Prior to this decision, the federal government did not recognize discrimination based on sexual orientation or gender identity claims under Title VII, and many employment law advocates brought cases for LGBTQ+ discrimination in the form of “sex stereotyping.” In fact, “Only 22 states had individual protections for sexual orientation and 21 had them for gender identity.”² In this article, we will explore the history of discrimination laws regarding gender/sex, the facts of the three cases heard before SCOTUS and how the justices arrived at their historic decision.

I AM WHO I AM: HISTORY OF SEX IN THE SUPREME COURT

The 1989 Supreme Court case Price Waterhouse v. Hopkins³ laid the foundation for the arguments that were heard before the Supreme Court in Bostock. Price Waterhouse defined “sex stereotyping,” as discrimination that “is a person’s nonconformity to social or other expectations of that person’s gender.”⁴ Ann Hopkins, the plaintiff in Price Waterhouse, was a senior manager at Price Waterhouse. Although her office prepared a statement highlighting her character and success, she was not considered for partnership. After Hopkins’ employers told her she was more likely to become partner if she acted more feminine, Hopkins sued Price Waterhouse based on gender discrimination in violation of Title VII. The sex stereotype characteristics Hopkins allegedly possessed included using profanity, she was overly aggressive, and she was somewhat masculine. The court found that Price Waterhouse impermissibly based Hopkins’ employment decision on gender stereotypes and her inability to conform to gender-specific expectations considered the norm. The lawyers in Bostock before the Supreme Court used the decision of Price Waterhouse, that “discrimination against an employee on the basis of sex stereotyping ... constitutes impermissible sex discrimination, in violation of Title VII”⁵ to argue their cases when an effeminate male or less than “feminine female do not conform to gender specific roles.”

DON’T GO TAKING MY EQUALITY: THE LANDMARK TRIO

The first two cases of the trio, Bostock v. Clayton County⁶ and Altitude Express v. Zarda,⁷ were consolidated into one case in front of the Supreme Court. Both involved the firing of two gay men from their places of employment due to their sexual orientation.

The petitioner in Zarda was a skydiving instructor who worked for Altitude Express.⁸ Part of Mr. Zarda’s job was to participate in tandem dives with clients who were strapped in close proximity to him for safety. To make female clients more comfortable during tandem skydives, he would disclose that he was a gay man. Zarda argued that he was terminated when a female client accused him of inappropriately touching her and that he used his sexual orientation as an excuse to commit such behavior.⁹ Zarda’s boss promptly fired him, claiming it was based on her reference to him being gay. Mr. Zarda brought suit against Altitude Express for violating Title VII when they terminated him because of his sexual orientation.¹⁰ The district court found that Title VII does not protect against sexual orientation discrimination. After the ruling, the Equal Employment Opportunity Commission (EEOC) issued an opinion in a separate case that said Title VII covers sexual orientation under the “basis of sex” language.¹¹ Zarda appealed to the 2nd Circuit Court of Appeals after the district court declined to reinstate his claim. The 2nd Circuit upon rehearing vacated the district court’s judgment regarding the Title VII claims held that Title VII does protect sexual orientation.¹² The Supreme Court granted a writ of certiorari from the appeal of Altitude Express.¹³

In Bostock, the petitioner was a gay man working at child welfare services in Clayton County, Georgia, when he was fired due to his sexual orientation.¹⁴ Mr. Bostock had worked for 10 years at Clayton County and received many positive performance evaluations and accolades. However, he was terminated by Clayton County for “conduct unbecoming of its employees” after participating in a gay recreational softball league.¹⁵ Bostock’s claim of discrimination was further supported because he was the target of offensive comments regarding his sexual orientation during the time he worked at child welfare services. After his termination, Mr. Bostock filed a charge with the EEOC, and three years later filed a lawsuit alleging discrimination based on his sexual orientation under Title VII. The district court dismissed his lawsuit for failure to state a claim because his claim was not supported under Title VII. The 11th Circuit Court of Appeals affirmed the district court’s holding.¹⁶ The Supreme Court granted a writ of certiorari from the appeal of Bostock.

LET’S TALK ABOUT YOU AND THEM

Pamela S. Karlan, attorney for Bostock and Zarda, argued that discrimination based on sexual orientation is discrimination based on sex, because under Title VII, Section 703(a), the adverse employment action is based on plaintiffs Bostock and Zarda’s failure to conform to a particular expectation about how men should behave; that they should be attracted to only women.¹⁷ The discrimination falls under Title VII because of the nonconformity with an expectation about how men should behave, and any attempt to carve this discrimination out of the act cannot be done with consistency or integrity.¹⁸ Additionally, Ms. Karlan argued that policies of denying employment to the gay community amount to double discrimination.¹⁹ Double discrimination is discrimination against men who do not conform to a male stereotype, and conversely would discriminate against women who do not conform to an expectation about female stereotypes.²⁰ Double discrimination does not follow Title VII’s original intention, which is to make sure that men are not disadvantaged relative to women and vice versa.²¹

Jeffrey M. Harris, attorney for Clayton County and Altitude Express, argued that “sex and sexual orientation are independent and distinct characteristics, and sexual orientation discrimination by itself does not constitute discrimination because of sex under Title VII.”²² In his arguments, Mr. Harris referred to Oncale v. Sundowner Offshore Servs., Inc.²³ claiming the case at hand is a mirror image of Oncale, where the Supreme Court reversed a 5th Circuit decision that held that same-sex harassment claims are categorically excluded from Title VII. The Supreme Court held in Oncale that all requirements of Title VII must be met, including the critical inquiry into whether men and women are being treated differently because of their sex.²⁴ Attorney Harris argued that the lower court in both Bostock and Altitude Express replaced sex with sexual orientation and adopted a rule of per se inclusion giving Bostock and Zarda a free pass around the inquiry into whether men and women are being treated differently because of their sex.²⁵

The final case of the trio, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, involved Aimee Stephens, former funeral director at R.G. & G.R. Harris Funeral Homes, Inc.²⁶ Ms. Stephens lived and presented as a man for most of her life; however, when she made her boss aware that she intended to transition to female, she was fired. After filing a complaint with the EEOC for sex discrimination, the EEOC sued Harris Funeral Homes for violating Title VII. The basis for the Title VII claim was that Ms. Stephens was terminated on the basis of being transgender and her refusal to conform to sex-based stereotypes.²⁷ The district court granted summary judgment for the defendant, and Ms. Stephens appealed this determination. The 6th Circuit Court of Appeals reversed the holding that the termination of Stephens based on her transgender status constituted sex discrimination under Title VII.²⁸

Attorney for Harris Homes, John J. Bursch, focused his argument on the treatment of men and women. He argued that sex and transgender status are independent concepts, and equal treatment of men and women does not warrant treating men as women.²⁹ Title VII says that sex-based differentiation is not the same as sex discrimination. Mr. Bursch then used what he called a “parade of horribles” style argument, discussing the negative results that would come with a sex-specific policy.³⁰ He claimed that Harris Homes fired Ms. Stephens not because she was a transgender woman, but because she violated dress code, and the sex-specific dress policy does not violate Title VII. Mr. Bursch also argued that adding transgender status to Title VII protection is adding in a classification that Congress had not intended to be in the statute.³¹

David D. Cole, attorney for Aimee Stephens, stated in oral arguments that the term “sex” included sexual orientation encompassing biological sex and sex assigned. The claim before the court was that Harris Homes treated Ms. Stephens differently because of her sex assigned at birth, and she was not terminated because of its sex-specific dress code policy. Mr. Cole urged the court not to ask whether something discriminates when it refers to sex but whether it differentiates in a way that injures. Burlington Northern³² supported this argument stating that a rule can impose a significant burden as to some people and a trivial burden as to others.³³ Thus, a rule that is sex-specific can affect anyone, because it discriminates against them, and a reasonable person in their shoes would experience a significant harm.³⁴ Mr. Cole reflected on Price Waterhouse giving the powerful argument that Ann Hopkins would lose her case were she transgender.³⁵ The objection to a transgender person is the ultimate sex stereotype, because it says that if a person is assigned at birth a certain sex, that is how they must live their life, and that was the but-for cause of Ms. Stephens’ termination. Ultimately, Mr. Cole did not argue Title VII to be updated or to redefine sex within it, he simply stated that Harris Homes fired Ms. Stephens because she was transgender, and that is sex discrimination.³⁶

LET’S TALK ABOUT SEX

In the landmark ruling, Justice Gorsuch began his opinion determining the meaning of “sex” in Title VII. To determine the definition of “sex” as used in Title VII, the court interpreted it according to the ordinary public meaning at the time of enactment.³⁷ The defendants argued that in 1964, the Title VII drafters could not have anticipated that “sex” would include sexual orientation and sexual identity,³⁸ and very few people in 1964 would anticipate such application.³⁹ However, the court concluded “The limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it is no contest. Only the written word is law ... .”⁴⁰ Although there was a dissonance in the parties’ definition of “sex,” the court interpreted the meaning of “sex” as the biological distinction between male and female.⁴¹

The court explained the inquiry into the definition of sex is only the beginning, and the real question is what Title VII says about sex.⁴² The court stated Title VII prohibits certain actions based on sex created but-for causation.⁴³ The but-for test then led to the inquiry into, “What did ‘discriminate’ mean in 1964?”⁴⁴ The court states that “discrimination” means “intentionally treat[ing] a person worse because of” his or her sex.⁴⁵ The court disagrees with the defendants that a policy of not hiring based on sexual orientation does not discriminate because it affects both genders equally. Title VII does not apply to both genders as a whole, and it explicitly states that employers are prohibited against certain actions against individuals, so the employers’ argument does not stand.⁴⁶

After the Supreme Court established the court’s interpretation on sex, they turn to application of the meaning. The court finds, “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”⁴⁷ The court discusses whether sexual orientation and sexual identity fall under “sex,” using the previously established definition of sex, indicating biological features. The court stated, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”⁴⁸ “[H]omosexuality and transgender status are inextricably bound up with sex... [T]o discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”⁴⁹ Illustrating with a hypothetical, the court expanded on the point. In this hypothetical, an employer has two employees who are identical in every sense including attraction to men; however, one employee is male and the other is female. If the male employee is fired based on this, then the employer has discriminated against him due to his sex. It does not matter that the male employee was fired for other reasons as well, because so long as sex was one factor of his termination, due to the but-for test, the employer has violated Title VII. Therefore, the defendant employer’s argument that firing based on sexual orientation involves two factors, sex and sexual orientation, does not stand because sex is a factor and that is enough to satisfy the but-for test.⁵⁰

Further, the employer’s argument that discrimination based on sexual orientation or identity is not intent to discriminate based on sex. The court rejects the employer’s position by analyzing the employer’s reliance on sex in the creation of the workplace policy. Despite policy being titled in a nondiscriminatory manner, an employer’s policy may still discriminate based on sex.⁵¹ Specifically “[a]n employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.”⁵² Despite an employer’s intention, discrimination based on sexual orientation or identity is sex-based discrimination prohibited by Title VII.

Although the court agrees with the employers that sexual orientation and sexual identity are separate concepts from “sex.” Discrimination based on sexual orientation or sexual identity cannot happen without first discriminating by sex.⁵³ It is the same with sexual harassment; sexual harassment is separate from “sex,” but it cannot happen without discriminating by sex and therefore falls under discrimination prohibited by Title VII. The court stated, “When Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”⁵⁴

Thus, discrimination based on “sex” includes the broad range of orientation, sexual identity or gender. The court rejected the defendant employer’s argument that potential bills could have been passed to amend Title VII to include sexual orientation and sexual identity.⁵⁵ Justice Gorsuch continued, saying it would be “particularly dangerous” to base an interpretation on the speculation about why Congress had not yet adopted new legislation to address discrimination based on sexual orientation or gender identity.

STICK TO THE SCRIPT: THE DISSENTS

Justice Alito, joined by Justice Thomas, begins his dissent stating that the court participated in an impermissible role. He states, “There is only one word for what the Court has done today: legislation.”⁵⁶ Justice Alito agrees with the employers that because no amendment has been made to Title VII, “Discrimination because of ‘sex’ means what it always meant.”⁵⁷ “This meant discrimination because of genetic and anatomical characteristics.”⁵⁸ He stated that the duty of the court is to interpret statutes as intended when drafted, and the court updated the term “sex” to follow current values and include sexual orientation and sexual identity.⁵⁹ Justice Alito contends there is no evidence the term was meant to be interpreted in such a way when Title VII was enacted.⁶⁰ Justice Alito asserts the majority opinion is in error because employers can discriminate based on sexual orientation without knowing the sex of the employee.⁶¹

Additionally, he argues that because neither sexual orientation nor gender identity are covered by Title VII, employers are free to decide whether sexual orientation and gender identity are relevant to them.⁶²

Justice Kavanaugh’s dissent also reflects the belief that the court acted impermissibly taking the responsibility of Congress. He argues that the court updated Title VII by taking the literal meaning of “sex” as opposed to the ordinary meaning.

Justice Kavanaugh stated that the court must use the ordinary meaning rather than the literal meaning for two main reasons: rule of law and democratic accountability.⁶³ The citizens governed by the rule of law must be able to understand it.⁶⁴ Also, following the ordinary meaning facilitates the accountability of the representatives elected by the citizens for the laws they pass.⁶⁵

Justice Kavanaugh then turns to what he believes is the main issue, “Does the ordinary meaning of [‘discrimination because of sex’] encompass discrimination because of sexual orientation?”⁶⁶ He analyzes sources indicating ordinary meaning, including common parlance, common usage by Congress, the practice of the Executive Branch, the laws in the states and the decisions of the Supreme Court. These sources all indicate discrimination based on sexual orientation is not included in discrimination based on sex.⁶⁷ Justice Kavanaugh states the plaintiffs needed to prove that the literal meaning of sex overrides ordinary meaning or that discrimination because of sexual orientation is included in the ordinary meaning of discrimination because of sex, which common usage indicates is not the case.⁶⁸

Despite this major victory for the LGBTQ+ community, the court’s opinion prohibiting discrimination based on sexual orientation or gender identity seems to be limited by religious freedom statutes. The court stated, “This Court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers.’”⁶⁹ The court also stated the Religious Freedom Restoration Act of 1993 acts “as a kind of super statute ... [and] it might supersede Title VII’s commands in appropriate cases.”⁷⁰ However, the court stated that how they interacted would be a question for the future. As of July 8, 2020, we can already see the court carving out exceptions to this ruling, particularly regarding religiously affiliated employers.⁷¹ Some in the LGBTQ+ community may consider this a setback upon such a monumental equal rights victory, but it is clear the opinion has limitations that remain to be litigated.

Plaintiffs, employment lawyers and the LGBTQ+ community know and understand these decisions will change their legal rights drastically under federal law. The Supreme Court decision in Obergefell v. Hodges in June 26, 2015, legalized same-sex marriage in all 50 states and changed the landscape for family law in the U.S. This is a step forward toward equality for all, but the opinion raises some questions as to potential issues with religious freedom. Time will tell what restricts this landmark case in the future as we see challenges come before the court. Until then, equality for all is one step closer.

ABOUT THE AUTHORS

Katherine Mazaheri is the founder and managing attorney of Mazaheri Law Firm, an all-female team of attorneys who have gained a reputation for taking on cases that attack various social injustices and help families in crisis. She’s passionate about employment litigation and educating on legal issues in online seminars regarding COVID-19 and employment law, sexual harassment and other Title VII best practices.

Hannah Lunsford is a recent graduate of the OU College of Law. She found a love of employment law while working at Mazaheri Law. She looks forward to a career that allows her to help her community and strive for integrity in everything she does.

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Endnotes

1. Pub. L. No. 88-352, 701,78 Stat. 241 (codified as amended 42 U.S.C. §2000e (2020)). “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex ... ” 42 U.S.C.S. § 2000e-2 (a)(1) (2020).
2. Anna North, “How the LGBTQ rights cases before the Supreme Court affect all Americans,” VOX, (Oct. 8, 2019, at 10:10 a.m.), www.vox.com/2019/10/8/20903088/supreme-court-lgbt-lgbtq-case-scotus-stephens.
3. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
4. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), Justia (last visited March 23, 2020), supreme.justia.com/cases/federal/us/490/228/#tab-opinion-1957938.
5. Price Waterhouse v. Hopkins, 490 U.S. 228
   (1989), Justia (last visited March 23, 2020) supreme.justia.com/cases/federal/us/490/228/#:~:text=Discrimination%20against%20an%20employee%20on,Civil%20Rights%20Act%20of%201964.
6. No. 17-1618.
7. No. 17-1623.
8. Altitude Express v. Zarda, Oyez, www.oyez.org/cases/2019/17-1623 (last visited March 24, 2020).
9. Id.
10. Id.
11. Complainant v. Anthony Foxx, Sec’y, Dep’t of Transp. (Fed. Aviation Admin.), Agency, EEOC DOC 0120133080 2015 WL 4397641 at *10 (July 16, 2015).
12. Id.
13. Altitude Express, Inc. v. Zarda, 139 S. Ct. 1599 (2019).
14. Bostock v. Clayton County, Oyez, www.oyez.org/cases/2019/17-1618 (last visited March 24, 2020).
15. Id.
16. Id.
17. Oral Argument, Oct. 8, 2019, 00:43, Bostock v. Clayton County, Oyez, www.oyez.org/cases/2019/18-107 (last visited March 23, 2020).
18. Id. at 1:05.
19. Id. at 2:10.
20. Id. at 2:13.
21. Id. at 3:50.
22. Id. at 26:18.
23. Oncale v. Sundowner Offshore Servs., Inc, 523 U.S. 75 (1998).
24. Id. Oral Argument, Oct. 8, 2019, at 26:33.
25. Id. at 27:14.
26. No. 18-107.
27. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Oyez, www.oyez.org/cases/2019/18-107 (last visited March 23, 2020).
28. Id.
29. Oral Argument, Oct. 8, 2019, 24:29, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Oyez, www.oyez.org/cases/2019/18-107 (last visited March 23, 2020).
30. Id. at 25:12.
31. Id. at 32:03.
32. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
33. Oral Argument, Oct. 8, 2019, 5:34, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Oyez, www.oyez.org/cases/2019/18-107 (last visited March 23, 2020).
34. Id. at 9:22.
35. Id. at 16:42.
36. Id. at 23:54.
37. Bostock v. Clayton Cty., Georgia, 17-1618, 2020 WL 3146686, at *1 (U.S. June 15, 2020).
38. Id. at *3.
39. Id. at *15.
40. Id. at *3.
41. Id. at *4.
42. Id.
43. Id.
44. Id. at *5.
45. Id.
46. 42 U.S.C.A. § 2000e-2(a)(1).
47. Bostock, 2020 WL 3146686, at *6.
48. Id. at *7.
49. Id.
50. Id. at *13.
51. Id. at *7.
52. Id.
53. Id. at *11.
54. Id.
55. Id. at *12.
56. Id. at *18.
57. Id. at *19.
58. Id.
59. Id.
60. Id.
61. Id. at *21.
62. Id.
63. Id. at *58.
64. Id.
65. Id.
66. Id. at *60.
67. Id. at *64.
68. Id.
69. Id. at *17.
70. Id.
71. Our Lady Guadalupe School v. Morrissey-Berru, 591 U.S. _ (2020).

Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 7 (September 2020)