On the surface, the stakes in this case seem enormous. In reality, they’re even larger.
The Supreme Court will hear three cases next Tuesday that ask whether it is legal to fire workers because of their sexual orientation or gender identity. That alone is enough to make them three of the most important employment discrimination cases in many years. But there are additional layers to these cases, layers that could imperil all workers regardless of whether or not they are LGBTQ.
The defendants’ arguments would reopen long-settled legal arguments, potentially upending much of federal anti-discrimination law in the process.
At the most fundamental level, Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC are cases about whether the existing federal ban on sex discrimination forbids employment discrimination against LGBTQ workers. Zarda and Bostock involve Donald Zarda and Gerald Bostock, gay men who allege they were fired because of their sexual orientation. Harris Funeral Homes involves Aimee Stephens, a trans woman who was fired by a boss who claims that he would violate “God’s commands” if he allowed Stephens “to deny [her] sex while acting as a representative of [the] organization.”
The text of the law bans only “sex” discrimination, not discrimination based on a worker’s sexual orientation or gender identity. These cases ask whether concepts like sexual orientation and gender identity are so tightly bound to the concept of sex (meaning gender, not sexual intercourse) that a ban on sex discrimination necessarily protects LGBTQ workers.
They are also the first big test of how the Supreme Court’s new majority will treat LGBTQ rights cases. Though retired Justice Anthony Kennedy was a conservative, he also authored the Court’s most important gay rights cases. Zarda, Bostock, and Harris Funeral Homes will tell us a great deal about whether it is possible to assemble a pro-LGBTQ majority on the Supreme Court without Kennedy’s vote.
Zoom out a little further and these three cases loom even larger. In 1989, the Supreme Court held that gender stereotyping is itself a form of sex discrimination — a woman may not be fired, for example, because her bosses deem her too masculine in appearance or conduct. Yet, as one federal appeals court explained in 2017, same-sex attraction is “the ultimate case of failure to conform” to a gender stereotype. Something very similar could be said about the stereotypical view that all people’s gender must align with the sex they were assigned at birth.
Thus, if the Supreme Court holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping. All workers — straight or queer; trans, cis, or non-binary — could become less secure in their jobs. And even if the Court does not go that far, it would be difficult to rule against these plaintiffs without carving out a significant exception to the broad rule that sex stereotyping is not allowed.
As the National Women’s Law Center argues in an amicus brief filed on behalf of itself and a long list of women’s groups, “the arguments advanced by the employers, if accepted, would roll back protections against discrimination based on sex stereotyping that has long been understood by federal courts, the Equal Employment Opportunity Commission (EEOC), employers, and employees in many parts of the nation as impermissible workplace discrimination.”
Zoom out a little more and Zarda, Bostock, and Harris Funeral Homes are an acid test that will reveal how committed several justices are to their own stated principles. Many of the Court’s most conservative members are avowed textualists — meaning that they hew to the late Justice Antonin Scalia’s belief that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The text of the law must be obeyed, under this view, even when that text leads to results that its drafters never would have imagined.
Yet, as I will explain below, the text of the law at issue in these cases, Title VII of the Civil Rights Act of 1964, is expansive. Indeed, it is so expansive that Zarda, Bostock, and Harris Funeral Homes should be easy wins for the plaintiffs.
These three cases, in other words, will show whether several of the Court’s conservative members are able to set aside their political views when their own textualist principles lead them to a liberal result. And they will show if the gay rights revolution that Kennedy helped lead will halt — or even potentially go in reverse — now that Kennedy is no longer on the Court.
When the text of a law is at odds with its originally intended purpose
Title VII prohibits employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Thus, on its face, the law bans any kind of employment discrimination that is driven by the employee’s “sex.”
Only 22 states prohibit employment discrimination based on sexual orientation and only 21 prohibit discrimination based on gender identity. So if the Supreme Court rules in favor of the employers in Zarda, Bostock, and Harris Funeral Homes, millions of LGBTQ workers will be left without legal protections.
There’s no real argument that Congress intended to prohibit anti-LGBTQ discrimination when it wrote Title VII. In 1965, one year after President Lyndon Johnson signed Title VII into law, an early gay rights group called the Mattachine Society asked the federal government to end a policy declaring openly gay people “unsuitable for Federal employment.”
The government’s response was, to say the least, not sympathetic. It said that the policy would remain in place because of
the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities, the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.
The government added that “homosexual conduct” is “a crime in every jurisdiction, except under specified conditions, in Illinois.”
So it is difficult to imagine that the lawmakers who enacted the 1964 civil rights law intended to ban LGBTQ discrimination when they wrote that law. The Stonewall Uprising, a seminal protest that crystallized the modern queer rights movement, was still half a decade away. The complete federal ban on hiring gay employees was not lifted until 1975.
The defendants’ best argument is that the original purpose of Title VII clearly was not to prevent discrimination on the basis of sexual orientation or gender identity. As the Trump administration states in a brief filed in the two cases involving gay plaintiffs, “even judges who have concluded that Title VII prohibits discrimination on the basis of sexual orientation acknowledge that in 1964 ‘sex’ did not refer to ‘sexual orientation.’”
And, to be clear, this argument — rooted in the intended purpose of Title VII — is not off limits for most judges. As Justice Stephen Breyer argued in a 2006 book, judges may use many “basic tools” to interpret a law: the law’s text, its history, tradition, precedent, the text of the law’s “purposes,” and the “likely consequences of the interpretive alternatives.” For judges like Breyer who do not claim that pure textualism is the only legitimate way to read a law, an argument that reading a law expansively is not consistent with the law’s purpose is entirely in bounds.
Under existing precedents, however, it is out of bounds for a Title VII case.
The plaintiff in Oncale v. Sundowner Offshore Services was a man who allegedly “was forcibly subjected to sex-related, humiliating actions” by his male colleagues, including physical assault and a rape threat. In an opinion by Justice Scalia, the Court unanimously agreed that Title VII permitted his lawsuit.
“Male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia wrote. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
It does not matter, in other words, what the people who wrote Title VII thought they were accomplishing when they banned sex discrimination. What matters is what the expansive words of the statute — all employment discrimination that occurs “because of … sex” is banned — have to say about a particular case.
This is why Zarda, Bostock, and Harris Funeral Homes should be easy cases. Take the cases with gay plaintiffs. Those plaintiffs are men who allege they were fired because of their sexual attractions to men. But presumably their employer would permit women to work at the company who are sexually attracted to men. That’s just basic sex discrimination.
The employers, for what it’s worth, reject this reading of Title VII, arguing that courts must “isolate sex” to determine whether discrimination took place. So long as the employer would fire all employees with same-sex attractions, this argument goes, no sex discrimination has taken place. To show sex discrimination, a gay male plaintiff must show that the employer treats gay men worse than lesbians.
But it’s hard to square this argument with Title VII’s expansive ban on any discrimination “because of sex.” As Zarda says in response to his adversary’s argument, if a company “fired men for loving romance novels, but continued to employ women who loved the same books,” that would be sex discrimination. If the same company also “fired women (but not men) who love automotive repair manuals” that wouldn’t transform a case about sex discrimination into a case about “literary-orientation discrimination.” It would simply “double the employer’s liability.”
The analysis in Harris Funeral Homes, the case involving a trans woman, is even more straightforward. Think about this case from the employer’s perspective. That employer believes that Aimee Stephens is a man and that Stephens is forbidden to “deny” her true sex. To keep her job, Stephens must comply with her boss’ understanding of how a man should dress and act.
But this same boss would not require a female employee (or, at least, an employee that the boss believes to be female) to dress like a man and to comply with male gender norms. The boss’ rule is that men must dress and act one way and women must dress and act a different way. That’s sex discrimination.
As the appeals court that decided Harris Funeral Homes explained, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”
The hidden stakes in these cases
A decision against the plaintiffs in these three cases would leave many Americans without recourse if they are fired because of their sexual orientation or gender identity. But there are also broader implications. Such a decision could also undercut other civil rights protections that the Supreme Court already recognizes — including, potentially, safeguards against sex stereotyping and sexual harassment.
Let’s start with sex stereotyping. The Supreme Court’s decision in Price Waterhouse v. Hopkins (1989), which recognized that such stereotyping violates Title VII, is a bit messy because the Court did not hand down a single majority opinion. Nevertheless, a clear majority of the Court supported the holding that sex stereotyping is not allowed.
Justice William Brennan wrote a plurality opinion on behalf of himself and three other justices, concluding that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes” when it enacted Title VII. Justice Sandra Day O’Connor, meanwhile, wrote a separate opinion concluding that the plaintiff in Price Waterhouse could proceed because she showed that “stereotypical attitudes towards women [played] a significant, though unquantifiable, role” in her employer’s decision not to promote her.
So that’s four votes for Brennan’s position plus a fifth vote from O’Connor — or a majority of the Court that says sex stereotyping is not allowed.
Justice Anthony Kennedy, meanwhile, wrote a dissenting opinion arguing that “Title VII creates no independent cause of action for sex stereotyping.” Kennedy wrote that “evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent,” but he denied that such stereotyping, in and of itself, violates Title VII.
Bear Kennedy’s opinion in mind when you read this passage from the Trump administration’s brief in Harris Funeral Homes:
Stephens’s and the Sixth Circuit’s sex-stereotyping argument rests on the incorrect premise that Price Waterhouse construed Title VII to prohibit sex stereotypes per se. But that case, which produced no majority opinion, merely recognized that a plaintiff can use evidence that an employer engaged in sex stereotyping to show that the employer discriminated because of sex under the ordinary Title VII rubric. It did not recognize sex stereotyping as a novel, freestanding category of Title VII liability.
The Trump administration’s position is identical to the position that the dissent took in Price Waterhouse. They are rather brazenly calling for a do-over in that 1989 case, perhaps hoping that the Court’s current, more conservative majority will pretend that Kennedy’s dissenting view carried the day three decades ago.
The crux of the Trump administration’s position is that a sex stereotyping plaintiff must prove “that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex.” But it is far from clear what this means in practice.
A straight man might not believe that they are being treated “less favorably” than his female colleagues if they are forbidden from engaging in romantic relationships with men, but the gay plaintiffs in Bostick and Zarda would no doubt see that question differently. The question of what constitutes “less favorable” treatment can be quite subjective. So the Trump administration’s position would give the judges of an increasingly conservative federal bench enormous discretion to decide which victims of sex stereotyping should be allowed to prevail.
As the brief from the women’s groups warns, “no principled reason justifies limiting Title VII so as to prohibit some, but not all, forms of sex stereotyping,” and any attempt to establish such limits would “make Title VII impossible to navigate for courts, employers, and employees, who would have to guess at whether a particular behavior or conduct related to a sex stereotype is not related to sexual orientation or gender identity—and thus, prohibited by federal law—or, whether it was tied to sexual orientation or gender identity and then deemed outside the scope of sex discrimination barred by Title VII.”
Unlike sex stereotyping, sexual harassment is not explicitly at issue in Zarda, Bostock, or Harris Funeral Homes. Yet a decision for the defendants in these cases could eventually signal an end to legal protections for victims of sexual harassment.
As explained above, the central tension in all three of these cases is whether Title VII should be given a textual interpretation or whether its scope should be limited to the way the law was understood in 1964. But the legal concept of “sexual harassment” arose several years after Title VII became law.
Many sources claim that the term was coined by Mary Rowe, an official at the Massachusetts Institute of Technology, who used term in a 1973 report. In 1979, legal scholar Catherine MacKinnon wrote a seminal book, Sexual Harassment of Working Women, which played a significant role in popularizing the idea that sexual harassment violates Title VII. The Supreme Court didn’t embrace this view until its 1986 decision in Meritor Savings Bank v. Vinson, which held that “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”
Thus, a view of Title VII that leans too hard on how the law was understood in 1964 could potentially wipe out protections for victims of sexual harassment. It could render Title VII a shriveled husk of what it’s been since the Reagan administration.
Zarda, Bostock, and Harris Funeral Homes, in other words, are not simply landmark LGBTQ discrimination cases. They could potentially undercut many of the foundations of America’s anti-discrimination law. Should the defendants prevail, the Supreme Court could potentially turn the clock back a third of a century.
Author: Ian Millhiser
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