Title VII sex discrimination oral arguments

14 Oct Title VII sex discrimination oral arguments

The Supreme Court heard oral arguments in two landmark Title VII sex discrimination cases on October 8, 2019. The two cases involve whether Title VII prohibits employment discrimination based on sexual orientation and gender identity. The Court’s decisions in these cases could transform federal employment discrimination law.

Bostock v. Clayton County Georgia: Does Title VII’s sex discrimination provision prevent employers from discriminating against gay employees?

The first of the cases was Bostock v. Clayton County Georgia. This case is actually two cases that the court consolidated because they raise the same issue. The Bostock plaintiff was an employee of Clayton County in Georgia. When the county found out he was gay, it fired him. The Plaintiff sued the county, arguing it unlawfully discriminated against him for being gay. The county argued that Title VII does not cover sexual orientation.

At the Supreme Court, the plaintiff’s argument started with the text of Title VII, which prohibits discrimination “because of…sex.” This means that employers can’t treat men and women differently. The plaintiff argued that the county would not have fired a woman that dated men, but that it fired the plaintiff for dating men. Because the only difference is sex, it must be sex discrimination.

The plaintiff also argued that this was unlawful gender stereotyping. Previously, the Supreme Court has decided it is unlawful under Title VII to discriminate against someone for not adhering to gender stereotypes. For example, an employer can’t fire a man for being more effeminate than men stereotypically are. The plaintiff argued that firing a man for dating men, is essentially the same thing because the employer expects the man to date women.

Meanwhile, Clayton County argued that Congress did not intend to include sexual orientation in Title VII. It noted that in 1964, when Congress passed Title VII, homosexuality was still highly stigmatized. At the time of Title VII, homosexuality was illegal in many places. Many medical professionals even considered it a form of mental illness. Accordingly, Congress did want homosexuals to be protected by Title VII. Because Congress did not intend to prohibit sexual orientation discrimination, the Court would be rewriting the law to say it does.

R.G. & G.R. Harris Funeral Home, Inc. v. EEOC: Does Title VII’s sex discrimination provision prevent employers from discriminating against transgender employees?

The second case was R.G. & G.R. Harris Funeral Home, Inc. v. EEOC. The plaintiff in this case was born biologically male. When she informed the funeral home she worked at that she intended to identify as a woman, it terminated her. Like the Bostock plaintiff, the plaintiff in this case sued under Title VII, claiming sex discrimination.

The plaintiff argued that this was quintessential sex stereotyping. She also argued that she was fired for being born biologically male, but identifying as female. Obviously the employer wouldn’t fire someone born a woman for identifying as a woman. Therefore, this is sex discrimination. Finally, the plaintiff argued that her employer fired her for changing her sex. As such, sex was a motivating factor in her termination.

The employer echoed many of the arguments from the previous case. Specifically, that Title VII is not intended to address gender identity. It also argued that sex and gender identity are two different things. Therefore, if Congress wanted to address gender identity, it would specifically say so in the law.

It also argued that it was not treating similarly situated people differently. Yes, it fired the plaintiff for being a transgender woman. But it would also fire a transgender man. Accordingly, there was no sex discrimination.

Court watchers unsure what the Court will decide

Those who follow the Supreme Court are divided on what the Court will do. The Court’s four liberal justices are likely find that Title VII prohibits discrimination on the basis of sexual orientation or gender identity. The question is whether the plaintiffs are able to convince any of the five more conservative justices. Some believe Trump appointee Neil Gorsuch may be the fifth vote for the plaintiffs. He did indicate at oral arguments that he thought it was a “close case.”

If one or more of the conservative justices actually join the liberal justices, the plaintiffs will prevail. Because lower courts must follow the Supreme Court’s rulings on Title VII, this would ban employment discrimination against gay and transgender people nationwide. But, if the five conservative justice all join together for the defendants, Title VII will not protect gay and transgender workers from discrimination under federal law. The Court will likely announce its decision in the spring of 2020.

These cases will not affect state employment discrimination laws

These cases only involve Title VII, which is federal employment discrimination law. Most states have some form of employment discrimination law. The Court’s decision in these cases will not affect those laws. Most state laws, however, do not prohibit employment discrimination on the basis of sexual orientation or gender identity. If the Court says Title VII does not protect gay or transgender workers, millions of gay and transgender people will be left with no protection from employment discrimination. Fortunately, California does prohibit employment discrimination against gay and transgender workers.

If you believe an employer has discriminated against you based on your sexual orientation or gender identity, contact the Khadder Law Firm today for a free consultation.

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