U.S. Supreme Court to Decide What “Sex” Means

By: Attorney Jerilyn Jacobs – Weld Riley, S.C.

On Monday, the United States Supreme Court granted review of three federal circuit court decisions that interpreted whether Title VII’s prohibition against discrimination based upon “sex” includes protections for sexual orientation or gender identity.

Title VII of the Civil Rights Act of 1964 states that it is an unlawful employment practice for an employer to discriminate against any individual “because of … sex.” The term “sex” is not defined by the statute, other than to note that it includes pregnancy, childbirth, or related medical conditions.  For the decades following the enactment of Title VII, it was presumed that “sex” did not include sexual orientation or sexual identity.

In 2016, the Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) held that Title VII’s prohibition against discrimination based on sex included discrimination on the basis of sexual orientation.  In 2017, on a rehearing before the entire Seventh Circuit, the panel’s decision was upheld in an 8-3 vote.  Since that time, the circuit courts have further split, with the Second Circuit (covering Connecticut, New York, and Vermont) agreeing with the Seventh Circuit and the Eleventh Circuit (covering Alabama, Florida, and Georgia) holding that sexual orientation discrimination is not recognized under Title VII. 

The Second Circuit’s decision of Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), is the first of the two sexual orientation cases that will be heard by the U.S. Supreme Court.  Zarda involved a New York skydiving instructor named Donald Zarda.  Mr. Zarda performed tandem skydives, during which he would be tied to the back of a client so that he could deploy the parachute and supervise the jump.  Mr. Zarda claimed that he often informed female clients of his sexual orientation — especially when they were accompanied by a husband or boyfriend in order mitigate awkwardness.  His employer claimed that it terminated Mr. Zarda’s employment following a complaint that Mr. Zarda had inappropriately touched a client.  Mr. Zarda died on October 3, 2014 in Switzerland in a base jumping accident, and the lawsuit is being continued by his family.

The Second Circuit ruled in Mr. Zarda’s favor, holding that Title VII’s prohibition on sex discrimination “applies to any practice in which sex is a motivating factor.” As the court further opined, “sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

The second of the two cases involving claims of discrimination based upon sexual orientation is Bostock v. Clayton Cty. Bd. of Commissioners, 723 F. App’x 964 (11th Cir. 2018), where the  Eleventh Circuit held that a county child welfare services coordinator, Gerald Bostock, could not maintain a claim under Title VII following the termination of his employment. Mr. Bostock claimed that he was fired for his sexual orientation following his joining a gay softball recreational organization, the Hotlanta Softball League.  The county asserted that Mr. Bostock was fired following an audit of the program he managed.  The Eleventh Circuit held that Mr. Bostock could not maintain a claim because binding precedent in the circuit held that actions based on sexual orientation are not prohibited by Title VII.

The U.S. Supreme Court’s ruling will resolve this split.

The U.S. Supreme Court will also review a decision of the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee), Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), where the court held that Title VII prohibits discrimination based upon gender identity.  This case involved an individual, Aimee Stephens (formerly known as Anthony Stephens), who was employed as a funeral director for a funeral home that enforced a dress code requiring men to wear pant suits and women to wear skirt suits. The funeral director worked and presented as a man for five years before informing her employer that she was transitioning to a female. Ms. Stephens was fired, after being told, “This is not going to work out.”  Finding in the funeral director’s favor, the Sixth Circuit reasoned  “Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens’s sex impermissibly affected [the] decision to fire Stephens.”

When certifying the case for review on Monday, the Supreme Court framed the issue as, “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

The court will hear oral arguments and issue a ruling in its next term, which starts in October and lasts until April, 2020.