Hello, fellow law nerds!
It has been a while since I’ve done a written explainer, so I figured it was time to reconnect with you, dear reader. So, catch me up on you. How are you? Staying hydrated? Practicing self-care? Great! Good to hear it.
OK, enough with the pleasantries. Let’s get down to business.
The U.S. Supreme Court decided on Monday to take a trio of cases that will determine whether employers can discriminate against LGBTQ employees as a matter of law, or whether Title VII of the Civil Rights Act of 1964 protects such employees.
Title VII, you may recall, makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The three cases that the Court decided to take include Altitude Express, Inc. v. Zarda, out of the Second Circuit, and Bostock v. Clayton County, out of the 11th Circuit. The two cases have been consolidated for oral argument, which means the Court will hear them together. The third case is R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC out of the Sixth Circuit, which the Court will hear separately. Donald Zarda and Gerard Bostock both claim they were fired for being gay. Aimee Stephens, the plaintiff in the third case, claims Harris Funeral Homes fired her for beginning to transition at work. My Team Legal compatriot Jessica Mason Pieklo has a comprehensive piece on those three cases, so I won’t go into the details here.
Instead, I’ll focus on Price Waterhouse v. Hopkins, the landmark 1989 case that the nine justices will have to wrestle with to reach a result in the three Title VII cases.
In Price Waterhouse v. Hopkins, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her she should wear makeup, style her hair, and act more feminine. The Court agreed that such comments were indicative of gender discrimination, and held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to societal expectations defined by gender.
I emphasize that last phrase because that’s exactly what the plaintiffs are arguing: that their employers treated them as if being trans or gay was a “failure” to act and appear according to societal expectations defined by gender. (It’s worth noting that although sex and gender are not the same, a lot of gender-related litigation—particularly with regard to discrimination—has been based on a legal interpretation of “sex.”)
In Bostock, Clayton County Juvenile Court administrators became concerned about the sexual orientation of Gerald Bostock, a gay child-welfare services coordinator assigned to the court. This concern extended to Bostock’s participation in a gay softball league. In Zarda, a gay employee of a New York state skydiving company tried to assuage the fears of a seemingly jealous boyfriend whose girlfriend he was tandem skydiving with. He did so by informing the couple that he is gay. In the wake of that revelation, the sky diving company fired him.
Bostock and Zarda both allege they were fired for being gay. And what is being gay if not a “failure” to act and appear according to expectations defined by gender? Men like Gerald Bostock and Donald Zarda are, by heteronormative societal standards, supposed to be attracted to women and to maintain intimate relationships with only women. If Bostock and Zarda were not men—in other words, if not for their gender—they argue that they would not have faced discrimination.
How is that anything but discrimination on the basis of sex?
Similarly, in Harris Funeral Homes, Aimee Stephens told her employer she planned to present as a woman and that she would be wearing the company’s uniform for women. Her employer told her that the public would not be accepting of her transition. In fact, her employer testified that he fired Stephens specifically because she planned to present herself as a woman and opposed calling her Aimee because, in his view, she wasn’t a woman. Ultimately, Stephens was fired because she refused to wear men’s clothes, just as Ann Hopkins was denied a promotion because she refused to wear makeup.
Again, how is that anything but discrimination on the basis of sex? Given the Court’s ruling in Price Waterhouse that gender stereotyping constitutes discrimination on the basis of sex, how is firing Stephens because she was unwilling to wear men’s clothes not discrimination on the basis of sex?
The issue is simple—or at least it should be. But those who oppose including gender identity and sexual orientation as a covered characteristic under Title VII are purposefully being obtuse in order to create confusion on the issue.
They argue that they are not discriminating against LGBTQ people because of their LGBTQ status. They argue that their discrimination is sex-neutral.
In Altitude Express, for example, after recognizing that “Title VII bars gender stereotypes insofar as that particular sort of ‘sex-based consideration’ cause ‘disparate treatment of men and women’ under Price Waterhouse, lawyers representing Zarda’s former employer argue that “an employer who hires only heterosexual employees is neither assuming nor insisting that his female and male employees match a stereotype specific to their sex. He is instead insisting that his employees match the dominant sexual orientation regardless of their sex” (emphasis in original).
To that, I say: What in the world are you talking about?
One of the stereotypes specific to men is that they should be partnered only with women. One of the stereotypes specific to women is that they should be partnered only with men. Refusing to hire a man or a woman because they are partnered with someone of the same sex—and therefore bucking the prevailing stereotype—is precisely discrimination because of sex.
A claim that an employer is simply insisting on conformity with dominant sexual orientation is such nonsense that it actually hurts my brain. For one thing, the idea of “dominance” as a justification for discrimination is in itself rubbish, for hopefully obvious reasons.
Opponents of inclusion argue that as long as an employer discriminates against all LGBTQ employees, there’s no disparate treatment: “We aren’t discriminating against lesbians. We simply refuse to hire any lesbians.”
In other words, an employer’s treatment of a lesbian employee should be compared to their treatment of other lesbian employees, and not women employees as a whole. And since there’s no disparate treatment between this lesbian and that lesbian, then there’s no Title VII violation.
The category of people with whom lesbians should be compared is other women, not other lesbians. The same is true for trans women, whose treatment should be compared with that of other women, not other trans people.
An employer who treats a lesbian differently than a non-lesbian woman is necessarily treating lesbians differently on the basis of their sex. To be sure, it’s also on the basis of their sex in relation to their partner’s. If the lesbian were partnered with a man, she wouldn’t be treated any differently. Though, of course, this raises potential trickiness regarding bisexuals who may be fired over the mere possibility that they might someday have a non-societally approved partner.
Still, as the Supreme Court said in the 1978 case City of Los Angeles Department of Water and Power v. Manhart, Title VII prohibits “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”
That includes disparate treatment based on arbitrary societal stereotypes regarding with whom an employee should be partnered or what gender they should identify with.
The Sixth Circuit addressed this issue when it ruled that Harris Funeral Homes had discriminated against Stephens because of her sex. The Court used an analogy from a 2008 case from the D.C. Circuit Court of Appeals. That case, Schroer v. Billington, involved sex-based discrimination claims by a transgender employee against the Library of Congress, and the facts of that case are similar to Aimee Stephens’ case. In Billington, the Court analogized firing an employee because they are transgender and have transitioned to firing someone for changing religions. The Court noted that an employer who fires an employee because the employee converted from Christianity to Judaism has “discriminated against the employee ‘because of religion,’ regardless of whether the employer feels any animus against either Christianity or Judaism.” That’s because “[d]iscrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.’” The Sixth Circuit in Harris Funeral Homes said that “[b]y the same token, discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
So there you have it. Now you know everything you need to know about Price Waterhouse v. Hopkins. And next term, you’ll be able to wow your friends and family with your extensive knowledge of Title VII and sex stereotyping as we bite our nails waiting for the Court to decide whether it will permit workplace discrimination against LGBTQ people as a matter of law.