Four years since the first Equality Act of 2015 was introduced, interpretation of the Civil Rights Act of 1964 remains ambiguous leaving thousands of LGBTQ+ individuals unprotected. On October 8th, three major cases were heard by the Supreme Court to determine if LGBTQ+ employees are protected under Title VII of the Civil Rights Act of 1964. These cases involved two gay men and a trans woman who were fired following their employers’ learning of their identities. Likely a ruling won’t be reached until early 2020, but the outcome will undoubtedly set a new precedent for future cases of a similar nature.
October 8th Hearings
In the pair of cases Bostock v. Clayton County and Altitude Express Inc. v. Zarda, the Supreme Court was tasked with determining whether title VII of the Civil Rights Acts bars the discrimination of an employee based on sexual orientation. The late Donald Zarda who was a skydiving instructor for Altitude Express, and Gerald Bostock who was a child-welfare-services coordinator in Clayton County were each fired due to their sexual orientation (Howe, 2019).
In the third case Harris Funeral Homes v. EEOC on behalf of Aimee Stephens the Equal Employment Opportunity Commission (EEOC) sued Harris Funeral Homes for firing Stephens on a religious basis after she informed her employer that she would be embracing her gender identity at work (ACLU, 2019). This ruling will determine if Title VII protects trans employees from discrimination based on gender identity.
Interpretations of the Civil Rights Act of 1964
Under the Civil Rights Act of 1964 it’s unlawful for an employer to “refuse to hire or to discharge any individual, or otherwise to discriminate against” an individual because of their race, color, religion, sex, or national origin (EEOC, 1964). In each of the three related cases the interpretation of “sex” was argued to determine if it should be regarded as inclusive to LGBTQ+ individuals as it is in states like California.
A key argument in favor of the employers was that at the time of the Civil Rights Act of 1964 being passed, Congress couldn’t have intended for it to include LGBTQ+ individuals as homosexuality had yet to be decriminalized in the vast majority of the country under the US sodemy laws (CNN, 2019). This was disputed by Pamela Karlan, the lawyer for Zarda and Bostock, who argued that sexual harassment would have also been an oversight at that time but is now recognized as a violation of Title VII (Howe, 2019). Karlan went on to state, “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII (Liptak, 2019)."
In Harris Funeral Homes v. EEOC David Cole, representing plaintiff Aimee Stephens, argued that Stephens had been fired under the expectation that she would act in accordance to assumptions of her assigned sex (Howe, 2019). Cole supported this as a violation of Title VII by referencing the precedent set by Price Waterhouse v. Hopkins, in which the plaintiff, Ann Hopkins, successfully sued her employer for denying her a promotion because she didn’t conform to “sex stereotypes” (Cornell Law School, 2019). Cole argued that similarly to how Ann Hopkins was discriminated against for not being “feminine enough” though cisgender, Aimee Stephens was discriminated against for not being “masculine enough” through her transition.
It appears the ruling for these cases may be a close call partially due to the replacement of the retired Justice Anthony M. Kennedy with the conservative Trump appointed Justice Kavanagh making the ideologies of the court especially divided (Barnes, 2019). Kavanagh was said to have kept a low profile during the hearings however, leaving much of the questioning to be done by the largely opposed Justice Alito and Justice Kagan (Barnes, 2019). While Alito argued that it was the place of Congress to determine if the act should be amended rather than the Supreme Court to reinterpret it, Justice Kagan appealed to the textualism of her conservative counterpart by saying,
The text of the statute appears to be pretty firmly in Ms. Karlan’s [Zarda and Bostock’s laywer] corner. Did you discriminate against somebody, against her client, because of sex? Yes, you did. Because you fired the person because this was a man who loved other men (Liptak, 2019).
The deciding vote will likely be conservative textualist Justice Gorsuch who appeared unconvinced of the correlation between sex and sexual orientation but described the case of Harris Funeral Homes v. EEOC as “really close” (Barnes, 2019).
Equality Act
In civil rights cases such as these it’s likely that the ruling will be based on the strict statute of federal law as, unlike Congress, the Supreme Court can’t pass legislation. Though there’s strong evidence supporting the reevaluation of what “sex” in the Civil Rights Act of 1964 covers, in the event of the Supreme Court ruling in favor of the employers, the protection of LGBTQ+ employees will be contingent on the passing of the Equality Act (2019) that’s currently before Congress.
The main purpose of the Equality Act will be to amend the ambiguity of the Civil Rights Act of 1964 —as well as the Fair Housing Act—by inserting “sex (including sexual orientation and gender identity)” before “or national origin” in each of the eleven titles. This will make the discrimination of an individual based on sexual orientation or gender identity illegal by federal law in instances such as employment, schooling, public accommodation, etc. (Cicilline, 2019).
The Equality Act (2019) currently has an unprecedented support of nearly 70% of Americans as well as over 200 companies and has been pushed for since 2015 when it was originally drafted (HRC, 2019). With Republican majority in the Senate however, it is likely to remain curbed by Majority Leader Mitch McConnell until we see a shift in party majority, despite it having bipartisan support.
Despite the recent polarization of politics, it’s clear that progress is inevitable. No matter one’s personal beliefs it should be universally recognized that no one should be discriminated against for their identity. In 2019 however, it’s concerning how long it has taken for issues of blatant discrimination to receive this platform, particularly when it remains unclear when we will see real structural change in how so many of our fellow Americans are treated.
Works Cited
ACLU. “R.G. & G.R. Harris Funeral Homes v EEOC & Aimee Stephens.” American Civil Liberties Union, 10 Sept. 2019, www.aclu.org/cases/rg-gr-harris-funeral-homes-v-eeoc-aimee-stephens.
Barnes, Robert, and Ann Marimow. “Trump Nominees Could Play Pivotal Role as Supreme Court Decides on Protections for Gay, Transgender Workers.” The Washington Post, WP Company, 9 Oct. 2019, www.washingtonpost.com/politics/courts_law/supreme-court-will-consider-whether-gay-transgender-workers-are-protected-by-federal-law/2019/10/07/b0c4b198-e966-11e9-85c0-85a098e47b37_story.html?outputType=amp.
Cicilline, and David N. “Text - H.R.5 - 116th Congress (2019-2020): Equality Act.” Congress.gov, 20 May 2019, www.congress.gov/bill/116th-congress/house-bill/5/text.
“The Civil Rights Act of 1964 Informational Page.” EEOC Home Page, www.eeoc.gov/eeoc/history/35th/thelaw/civil_rights_act.html.
EEOC. “Facts About Sexual Harassment.” Facts About Sexual Harassment, www.eeoc.gov/eeoc/publications/fs-sex.cfm.
Howe, Amy. “Argument Analysis: Justices Divided on Federal Protections for LGBT Employees (UPDATED).” SCOTUSblog, 8 Oct. 2019, www.scotusblog.com/2019/10/argument-analysis-justices-divided-on-federal-protections-for-lgbt-employees/.
HRC. “HRC Announces Unprecedented Support for the Equality Act from 200+ of Nation's Leading Businesses.” Human Rights Campaign, 8 May 2019, www.hrc.org/press/hrc-announces-unprecedented-support-for-the-equality-act-from-200-of-nation.
Law, Cornell. “Price Waterhouse v. Hopkins.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/supremecourt/text/490/228.
Liptak, Adam. “Supreme Court to Hear Cases on Bias Against L.G.B.T. Workers.” The New York Times, The New York Times, 8 Oct. 2019, www.nytimes.com/2019/10/08/us/politics/supreme-court-gay-transgender.html.
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