August 26, 2019

On Tuesday, October 8, 2019, everyone will wake up and put their pants on one leg at a time, but those in the LGBT community will do so with the weight of the United States Supreme Court on their shoulders. After a hopefully hearty breakfast, attorneys and leaders in the LGBT community will meander up the nearly century-old steps of the United States Supreme Court Building as they prepare for the Justices to convene for arguments in three cases addressing sexual orientation and transgender discrimination in the workplace: Bostock v. Clayton Cty., GA; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Home v. EEOC.

The first two cases have been consolidated into a single one-hour hearing after reaching differing conclusions on the issue of sexual orientation discrimination in the workplace at the lower appellate level. Altitude Express involves a skydiving instructor who alleges he was fired for being gay. His firing occurred after a female customer complained about a comment he made about his sexual orientation. A divided 13-judge panel for the 2nd Circuit allowed the lawsuit to proceed on the basis “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” One of the notable developments in this case was the federal government’s appearance on both sides of the case. One attorney appeared on behalf of the EEOC to argue Title VII barred discrimination on the basis of sexual orientation while another appeared on behalf of the Trump administration arguing the exact opposite. Bostock similarly involves an employee who was allegedly fired because he was gay; however, the 11th Circuit found Title VII did not prohibit employment termination based on sexual orientation.

In Harris Funeral Home, the Court will address whether transgender workers are protected under Title VII of the 1964 Civil Rights Act. The employee in this case was fired after she told her employer she was transitioning from male to female. The employer contends the grounds for termination was her failure to comply with the sex-specific dress code.

The case has become somewhat of a procedural mess as the federal government has internally clashed over its position on LGBT rights under Title VII. The EEOC prevailed on behalf of the employee at the 6th Circuit on the grounds Title VII should protect LGBT workers, but the Justice Department has since issued a memorandum reversing the Obama administration’s position that LGBT workers should be protected under Title VII. The Justice Department took over representation of the EEOC and now argues Congress did not intend to include transgender individuals in its definition of “sex” under Title VII and a different interpretation by the Supreme Court would essentially usurp Congress’ rulemaking authority.  In response, the EEOC chose to not sign the Justice Department’s brief, despite urging from Solicitor General Noel Francisco. The Justice Department’s brief for Harris Funeral Home can be read here. Harris Funeral Homes is represented by the Alliance Defending Freedom while the employee is personally represented by the American Civil Liberties Union after she intervened on her own behalf when the case reached the 6th Circuit.

This is the second time in the last few weeks the Justice Department and the EEOC have clashed over workplace rights. The previous came in BNSF v. EEOC when the Justice Department urged the Supreme Court to vacate a disability discrimination ruling that the EEOC previously won against BNSF Railway at the lower appellate level.

These cases are just one example of the former Obama administration and the current Trump administration clashing on social issues in the courtroom. They will also be the first Supreme Court cases dealing with LGBT rights since Justice Anthony M. Kennedy, a transformative LGBT rights ally, retired last summer and was replaced by the more conservative Justice Brett M. Kavanaugh.

Update on 8/28/2019: On August 23, 2019, Idaho Attorney General Lawrence Wasden and Idaho congressman Russ Fulcher signed an amicus brief filed in all three cases that argues federal civil rights laws prohibiting discrimination based on gender do not apply to those who are gay, bisexual, or transgender. The following 14 states also joined the filing: Alabama, Alaska, Arkansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and West Virginia. An article in the Idaho Statesman covering the story can be accessed here.

We will provide you with an update once the decisions are released.  Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.