POV: SCOTUS Should Protect LGBTQ Workers. But Will It?

Photo courtesy of iStock/dkfielding

Earlier this week, the Supreme Court announced that it would review three cases that could decide whether the ban on discrimination based on sex in Title VII of the Civil Rights Act of 1964 applies to discrimination based on sexual orientation and gender identity. While the outcome is uncertain, the court should take an expansive view of the protections embodied in Title VII and hold that the act prohibits discrimination based on sexual orientation and gender identity. Failure to do so would set back the struggle for equal rights and further erode public trust in the ability of the court to safeguard the rights of all Americans.

Title VII bans discrimination in employment based on a person’s race, color, religion, sex, or national origin. For many years after its initial enactment, courts declined to extend Title VII’s prohibition on sex-based discrimination to discrimination based on an individual’s sexual orientation or gender identity. In 2017, however, in Hively v. Ivy Tech Community College, the United States Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII. In reaching its decision, the seventh circuit relied on the Supreme Court’s decision in Price Waterhouse v. Hopkins. In that case, the Supreme Court found that a woman employee who was advised to “wear makeup, have her hair styled, and wear jewelry” suffered sex-based discrimination in violation of Title VII. In doing so, the Supreme Court held that sex stereotyping violated Title VII’s prohibition of sex-based discrimination. The seventh circuit applied that reasoning to sexual orientation–based discrimination, stating that the plaintiff in Hively “represents the ultimate case of failure to conform to the female stereotype…: she is not heterosexual.”

The seventh circuit also looked to Loving v. Virginia, the Supreme Court case striking down laws prohibiting interracial marriage. In Loving, the Supreme Court held that Virginia’s law banning interracial marriage violated the Constitution’s Equal Protection clause because of its denial of an individual’s right to associate with another person because of that person’s race. Similarly, the seventh circuit held that discriminating against an employee based on the sex of the person with whom the employee wants to associate constitutes sex-based discrimination in violation of Title VII.

Moreover, in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a 2018 case, the United States Court of Appeals for the Sixth Circuit held that Title VII prohibits discrimination based on gender identity. In a case involving a transgender employee, the court found that discrimination based on transgender status was discrimination based on “sex stereotyping.” The court also found that discrimination based on an employee’s status as a transgender person is discrimination “motivated, at least in part, by the employee’s sex.”

While the United States Court of Appeals for the Second Circuit adopted the seventh circuit’s view in Zarda v. Altitude Express, in Bostock v. Clayton County Board of Commissioners, the United States Court of Appeals for the Eleventh Circuit held that Title VII does not prohibit discrimination based on sexual orientation. The eleventh circuit relied on earlier decisions holding that Title VII did not apply to discrimination based on sexual orientation, largely looking to Congressional intent at the time Title VII was adopted. Because of the conflict among the federal courts of appeals, the Supreme Court granted review of the cases from the second, sixth, and eleventh circuits, cases which squarely present the issue of Title VII’s applicability to cases of discrimination based on sexual orientation and gender identity.

How will the Supreme Court decide the case? Beginning with Romer v. Evans in 1996, the Supreme Court has decided a number of decisions protecting the rights of gay and lesbian Americans. In Romer, the court held that an amendment to the Colorado Constitution that prohibited all legislative, executive, or judicial action designed to protect gay or lesbian people violated the Fourteenth Amendment’s Equal Protection clause. In 2003, in Lawrence v. Texas, the Supreme Court held that a Texas law criminalizing same-sex sexual conduct was unconstitutional under the Fourteenth Amendment’s Due Process Clause. In 2013, in U.S. v. Windsor, the court held that the Defense of Marriage Act, which stated that the federal government would not recognize same-sex marriages, violated the Fourteenth Amendment’s Due Process Clause. Finally, in Obergefell v. Hodges, the court held that the Fourteenth Amendment’s Equal Protection and Due Process Clauses guarantee the right of same-sex couples to marry.

All of these Supreme Court decisions have one thing in common—all were authored by now-retired Justice Anthony Kennedy. Moreover, both Windsor and Obergefell were decided by 5 to 4 decisions, with Justice Kennedy joined by the four more liberal justices—Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Justice Kennedy has been replaced by Justice Brett Kavanaugh, chosen largely because of his conservative credentials. While the current controversy surrounding the scope of Title VII involves different legal issues than the earlier Supreme Court cases involving sexual orientation, the underlying principles are intertwined. Courts that have held that Title VII protects against sexual orientation and gender identity discrimination have looked to these earlier Supreme Court cases for guidance. But what will the court do now?

Based on the conservative justices’ hostility to an expansive view of individual rights, and their dissenting opinions in cases involving the rights of LGBT citizens, a conservative majority could very well decide that Title VII does not prohibit discrimination based on sexual orientation or gender identity. After all, in 1964, when Title VII was enacted, Congress likely did not consider whether to include LGBT Americans within its protections. In fact, some historians argue that “sex” was added to the protections granted by Title VII in an effort to kill the bill. Finally, in a reversal of the position taken by the Obama administration, the Trump-led Equal Employment Opportunity Commission has taken the view that Title VII does not prohibit discrimination based on gender identity.

On the other hand, there is strong precedent for an expansive reading of Title VII. In addition to the Supreme Court’s recognition of sex stereotyping as a form of sex-based discrimination, in Oncale v. Sundowner Offshore Services, Justice Antonin Scalia, writing for the court, held that Title VII prohibits same-sex sexual harassment. Finally, a plain reading of the act strongly supports an expansive interpretation of the act. Discriminating against an individual who desires to partner with a member of her own sex would seem to directly discriminate against that individual because of her sex. If a man wants to partner with a woman, he would not be subject to discrimination, but if a woman wants to partner with a woman, she would.

Currently, 21 states, including Massachusetts, prohibit discrimination in employment based on sexual orientation and gender identity. A majority of states do not protect LGBT citizens from discrimination in employment, however. LGBT folks in those states have no protection against being discharged or demoted based on their sexual orientation or gender identity. For that reason, how the Supreme Court addresses the issue can affect millions of Americans.

Robert Volk (LAW’78), a School of Law associate professor of legal writing, can be reached at rvolk@bu.edu.

“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact Rich Barlow at barlowr@bu.edu. BU Today reserves the right to reject or edit submissions. The views expressed are solely those of the author and are not intended to represent the views of Boston University.