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SCOTUS Rules on Title VII’s Protections for LGBTQ+ Employees
The U.S. Supreme Court released its highly anticipated landmark decision on whether Title VII of the Civil Rights Act of 1964 (“Title VII”) includes sexual orientation and gender identity as protected from employment discrimination. The Court, in a 6-3 decision, held that the term “sex” in Title VII protects LGBTQ+ employees from employment discrimination.
The Supreme Court reviewed three consolidated cases: Bostock v. Clayton County, Georgia, No. 17-1618; Altitude Express Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, No. 18-107. Morse previously discussed the facts of these cases here. Justice Gorsuch wrote for the majority and was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justices Thomas, Alito, and Kavanaugh dissented.
The cases turned on whether Title VII’s prohibitions on discrimination “because of sex” included gay and transgender employees. As Justice Gorsuch writes,
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Gorsuch explains that under the plain terms of Title VII, an employer is in violation when it takes an adverse action against an employee based, at least in part, on sex. Gorsuch emphasizes that “changing the employee’s sex would have yielded a different choice by the employer.” For example, the Court writes, with two employees who are both attracted to men and are, otherwise, identical, but one is male and one is female, if the employer fires the male employee because he is attracted to men, while keeping the female employee, then the employer has violated Title VII. Discrimination against LGBTQ+ employees, Gorsuch made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”
The majority also held that other factors, along with sex, may contribute to an employer’s decision. In other words, the employee’s sex, including their homosexuality or gender identity, “need not be the sole or primary cause of the employer’s adverse action” to run afoul of Title VII.
The dissent written by Justice Alito emphasizes that because homosexuality and gender identity were not commonly known or supported in 1964, the drafters of Title VII did not intend to include LGBTQ+ employees in its protections. Instead, they argue, “because of sex” was meant only to protect against treating women differently than men, and vice versa. Justice Kavanaugh filed his own dissent which makes the argument that while he agrees that Title VII should be expanded to cover sexual orientation, it is not the job or responsibility of the Court to amend Title VII. Instead, that power “belongs to Congress and the President in the legislative process….”
Of note, the Court did not come to a decision on how religious freedom laws, such as the Religious Freedom Restoration Act, would affect such Title VII cases, as none of the litigants raised the issue on appeal. But, the Court did acknowledge that these “are questions for future cases….”
Two of the three named plaintiffs sadly passed away prior to the Court’s decision, but their cases will now have significant implications for employers and LGBTQ+ employees across the country. Up until this decision, many states and jurisdictions were either split or silent on whether Title VII protected LGBTQ+ employees. Even on the federal level, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice held positions contrary to each other. Now that the highest Court has spoken on the issue, states and agencies alike will now be generally aligned in their positions in protecting LBGTQ+ employees and prosecuting employers who take discriminatory actions. Some states, like Massachusetts, already provided their own individual protections based upon sexual orientation and gender identity, but many states previously did not. Employers should review their internal anti-harassment policies and make sure employees are trained on the prevention and reporting of any discrimination.
For more information, please contact Amanda Thibodeau.
U.S. Supreme Court Rules EEOC Charge is Procedural Requirement, Not Jurisdictional
By: Amanda Thibodeau
As we have discussed previously, Title VII of the Civil Rights Act of 1964 (“Title VII”), is a federal statute that prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who assert rights under the statute. To assert a claim under Title VII, the statute outlines that as a precondition to filing suit in federal court, a person must file a formal charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days of the alleged violation. But what happens if an individual fails to file such a charge, or fails to list every alleged violation in that charge?
On June 3, 2019, the U.S. Supreme Court answered that question with its ruling in Fort Bend Cty. v. Davis. In Davis, the plaintiff filed an initial charge with the EEOC alleging retaliation for reporting sexual harassment to her employer. While the EEOC case was pending, Ms. Davis contends she was fired for refusing to work on Sundays based upon her religious commitments. Ms. Davis attempted to add to the initial EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but her EEOC charge was never formally amended. She then went on to file her case in federal court, alleging discrimination based upon religion and retaliation.
Several years into the litigation, Fort Bend filed a motion to dismiss based upon Ms. Davis’ failure to file an EEOC charge alleging religious discrimination. Fort Bend alleged the federal court did not have jurisdiction over the claim because Ms. Davis failed to meet Title VII’s charge requirement. The district court granted that motion. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that Fort Bend waived the issue by waiting too long to raise it with the court.
The U.S. Supreme Court then weighed in this week affirming the Fifth Circuit’s opinion, holding that Title VII’s charge requirement is procedural rather than jurisdictional. The Court said Title VII’s charge requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” In short, while Title VII requires an individual to file a charge with the EEOC, the filing itself is not necessarily the act that triggers jurisdiction over the claim, and thus failing to file the charge is not necessarily fatal.
The Court’s ruling does not mean that plaintiffs are free to ignore such claim-processing requirements, however. The Court was clear that the failure to follow such requirements may still be fatal to plaintiffs’ claims; however, defendants must be careful to raise the issue early on – preferably in the answer or an early motion to dismiss. Otherwise, the procedural defects are deemed waived.
For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.
Title VII at SCOTUS
By: Amanda Thibodeau
In April 2019 the U.S. Supreme Court announced it would hear three cases related to discrimination based upon sexual orientation and gender identity during its next term. The Court will analyze the scope of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of a protected class. Currently, the lower courts are split on whether the term “sex” in the statute includes sexual orientation and/or gender identity. Both the Second and Seventh Circuit Courts as well as the Equal Employment Opportunity Commission (EEOC) all interpret Title VII as covering sexual orientation, while the Eleventh Circuit disagrees.
In two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, the Court will consider whether Title VII’s prohibition on sex discrimination protects individuals from discrimination on the basis of sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, on the other hand, the Court will consider whether discrimination on the basis of gender identity is prohibited under Title VII.
The Zarda case involves a skydiving instructor who was fired after he disclosed to a customer that he was gay. Mr. Zarda subsequently died in a 2014 skydiving accident, and his estate has been pursuing the case on his behalf. The U.S. Court of Appeals for the Second Circuit interpreted Title VII to include sexual orientation under its protections. Mr. Zarda’s former employer then appealed that decision to the U.S. Supreme Court. Noteworthy is that the EEOC and the Department of Justice (DOJ) both submitted briefs in the Second Circuit which were inapposite of each other: the EEOC arguing that Title VII protects discrimination based upon sexual orientation, while the DOJ argued it does not.
In the Bostock case, a child welfare services coordinator claimed he was fired for being gay. The Eleventh Circuit ruled against him, citing a 1979 5th Circuit case that held homosexuality is not prohibited by Title VII.
The third case, Harris, involves a transgender woman, Aimee Stephens, who was fired after informing her employer, a funeral home, that she was a transgender woman and would start wearing women’s clothing to work. Her former employer defended itself in the case by claiming that it believed gender transition violated “God’s commands.” The federal district court initially ruled that Ms. Stephens was discriminated against, but that the employer was protected by the Religious Freedom Restoration Act. The Sixth Circuit then reversed the district court, holding that not only is transgender discrimination prohibited under Title VII, but also that the employer was not protected by the Religious Freedom Restoration Act. The funeral home appealed.
Some states, like Massachusetts, already provide their own individual protections based upon sexual orientation and/or gender identity, but many states do not. The Supreme Court’s determinations in these cases, therefore, have the potential to change the landscape of employment discrimination law nationwide, and will be closely watched. Advocacy groups, such as the American Civil Liberties Union (who is co-counsel in two out of three cases), are particularly concerned about the potential impact of the Court’s decisions. Decisions in these cases are expected by June 2020.
Morse will watch these cases closely and will provide updates as new information becomes available.
For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.
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