SCOTUS Trio: Does Title VII “Sex” Discrimination Include “Sexual Orientation” and “Gender Identity”?

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The U.S. Supreme Court recently accepted a trio of cases addressing whether Title VII’s prohibition of “sex” discrimination in employment contexts should focus on biological male and female distinctions, or if it should be expanded and redefined to cover “sexual orientation” or “gender identity.” Lower federal courts have split on these issues. The Equal Employment Opportunity Commission (EEOC) has favored such expansiveness, while the Trump administration is opposed. Thus, our nation’s highest court is poised yet again to reshape the legal landscape on deeply divided cultural issues. Much legal analysis and other commentary thus may be expected in the coming months. Against the backdrop of our prior articles on related employment discrimination litigation, this article highlights the tension between the judiciary and legislative government branches as well as significant religious liberty interests at stake.

Clashing Cases

Briefly, the three cases are R.G. & G.R. Harris Funeral Homes v. EEOC, Zarda v. Altitude Express, and Bostock v. Clayton County, Georgia. Harris Funeral arose from a religious funeral home’s discharge of a biologically male employee who refused to comply with its sex-specific dress code. The EEOC filed suit, seeking to force the business to allow the employee to wear a female uniform while interacting with the public. While Harris Funeral thus involves a transgender employee, Altitude Express involves a self-identified gay man working as a skydiver in close physical contact with others, who brought an employment discrimination claim after a customer complained of his inappropriate behavior.  Bostock likewise involves a gay man asserting that he was unlawfully fired based on sexual orientation, rather than legitimately for mismanaging public money as asserted by his employer. The latter two cases also dovetail with the Seventh Circuit’s pivotal Hively v. Ivy Tech Community College ruling in 2017, in which an eight-member majority of all the federal Seventh Circuit judges expanded “sex” to encompass “sexual orientation” for purposes of Title VII protection, against a strong dissent urging judicial restraint. These cases thus present a clash of conflicting federal rulings on the question of whether the word “sex” means “sexual orientation” and “gender identity” for purposes of employment discrimination.

Title VII’s Scope of Legal Protection – It Depends . . .

Title VII of the federal Civil Rights Act of 1964, as amended, prohibits employment discrimination based on specific classifications, such as sex, race, and national origin.  In ruling on discrimination claims, most federal appellate courts have historically distinguished between “sex” and “sexual orientation.” These courts have held that Title VII’s protection for the first term does not include the latter.

In recent years, however, the Equal Employment Opportunity Commission has taken the position that Title VII also protects sexual orientation and gender identity claims. Notably, many state and local laws treat these terms as separate categories warranting legal protection. The federal Seventh and Second Circuit Courts have taken a sharp turn, however, holding that the term “sex” includes “sexual orientation” for Title VII purposes.

As we reported regarding the Seventh Circuit’s Hively ruling (covering Illinois, Indiana, and Wisconsin), the majority of judges observed that the “goalposts have been moving over the years.” The majority then reasoned that expanding Title VII to include sexual orientation constitutes an appropriate extension, consistent with Title VII’s extension for sexual harassment and gender-nonconforming claims. In doing so, the majority overturned its own settled case law which does not allow for such expansion of Title VII.

Among their many objections, the dissenting judges relied on fundamental canons of statutory construction, under which words are to be interpreted as “taking their ordinary, contemporary, common meaning,” and therefore the dictionary definition of the word “sex” as not synonymous with “sexual orientation.” Rather, such words “plainly describe different traits” with “separate and distinct meanings” for each characteristic. The dissent also cited extensive federal, state, and local laws, all of which reflect a distinction between sex discrimination and sexual orientation discrimination.

Altitude Express similarly involves a favorable ruling for a sexual orientation claim, from the Second Circuit Court of Appeals (covering New York, Connecticut, and Vermont). As we previously reported, the U.S. Department of Justice filed an amicus (“friend of court”) brief in connection with a now-superseded petition for rehearing en banc, providing an excellent preview of its expected position before the U.S. Supreme Court. The DOJ urged separating what the law currently provides (the judicial question) from what the law should be (the legislative policy question) regarding the sex-related terms at issue.

As with the Hively dissenters, the DOJ advocated for judicial restraint: “[E]ven unforeseen circumstances do not present courts with a license to ‘rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done’ to implement a clear statute’s policy objectives” (citing a U.S. Supreme Court 2017 decision). In other words, the judiciary should “apply,” not “amend” Title VII. The DOJ also recited an extensive list of court cases rejecting judicial extensions of statutes, along with Congress’ steady refusal to expressly extend Title VII through its subsequent legislative changes, none of which included the addition of “sexual orientation” terminology or otherwise defined the term “sex” more broadly.

The DOJ further asserted that a Title VII sexual harassment claim arises only if there is discrimination because of sex, regardless of whether it involves opposite sex or same-sex harassment. The question in Title VII cases thus becomes whether “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. The question, then, really is whether it was the plaintiff’s sex (as male or female) which was the determining factor in the employment decision, and that members of different sexes receive disparate treatment as a result of their sex itself rather than what they do as a member of that sex.

What Now? Judicial vs. Legislative Expansion, and Religious Liberty Protections Too

We wait for the U.S. Supreme Court’s consideration and decision on whether, and to what extent, Title VII may be expanded to cover sexual orientation and gender identity employment discrimination claims. Key questions include whether the extensive judicial precedent, legislative history, and other arguments warrant constraining Title VII’s discrimination protections against inclusion of sexual orientation and gender identity issues. Or is such expansion now warranted, as the EEOC, some courts, and other proponents would argue? Should that expansion come through the judicial system or Congress? Notably, many state and local laws already identify sexual orientation and gender identity expressly as a protected class, for employment as well as housing and other purposes. Congress could do likewise, through amending Title VII.

What about religious liberty protections? Churches, religious educational institutions, and other faith-based organizations may seek exemption from such laws, based on their sincerely held religious beliefs about sexuality such as the Bible’s mandate for one-man/one-woman marriage and prohibition against adultery. This protection is grounded in First Amendment rights of religious liberty, freedom of speech, and freedom of association, as well as their state constitutional counterparts. Religious employers’ arguments for exemption from anti-discrimination laws generally fall into the following three categories based on their religious liberty interests: (a) a “bona fide occupational qualification,” or BFOQ, for certain jobs (e.g., a hospital chaplain or religious education teacher); (b) the “ministerial exception,” as recognized by the U.S. Supreme Court’s 2012 Hosanna-Tabor Evangelical Lutheran Church & School. v. EEOC decision, and applicable only to properly designated “ministers”; and (c) the federal Religious Freedom Restoration Act and state counterparts, which require a balancing of government interests against religious interests at stake. Given Harris Funeral’s religious dimensions, the U.S. Supreme Court may further develop the contours of employment-related religious liberty protections.

How will our highest court rule?  One possibility is that the Court may interpret Title VII according to the statute’s plain language, declining to extend its definition of sex beyond biological sex.  Or the Supreme Court might do the opposite and expand Title VII’s protections to include sexual orientation and gender identity. It is also possible that Congress may weigh in and legislatively redefine Title VII’s protections to include, or specifically not include, gender identity and sexual orientation, and possibly with a religious exemption. Such legislative action presumably would thereby preempt these cases.  So legislative deliberation or court fiat?  Either may provide resolution of the deeply clashing sides, at least as a legal matter, even as it may inflame cultural divisions in our increasingly polarized country. In any event, one can only hope that legal clarity may bring with it a renewed commitment to civil public discourse.