For almost 50 years, virtually every court to address the issue, the Equal Employment Opportunity Commission, and the federal government in litigation before the courts, all took the position that the protection against discrimination “because of . . . sex” in Title VII of the Civil Rights Act did not cover sexual orientation or gender identity.
But over the last six to seven years, the EEOC stated, “sexual orientation is inherently a ‘sex-based consideration,'” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”
Some courts soon began to follow that approach, while others declined to rewrite a statute that had been understood for decades not to cover LGBT employees. Now, the Supreme Court is about to weigh in and provide a definitive answer, after hearing oral arguments in three separate cases raising these issues on October 8.
The lower courts struggled with these issues for several years before the current group of cases reached the Supreme Court. These courts produced a variety of explanations for their decisions.
On the side in favor of finding that the statutory language “because of sex” includes sexual orientation and gender identity, one well-known judge simply opined that the court should “acknowledge openly that today[,] . . . judges rather than members of Congress . . . [should impose] on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”
Other courts and judges have made byzantine arguments as to why a “plain” reading of the word “sex” should include sexual orientation and transgender status, and that the courts should protect individuals in those categories even though the Congress that passed the statute never would have–and even though “sex” at that time was not understood to include sexual orientation and transgender individuals.
This is for at least three reasons, these judges say:
- Sexual orientation cannot be understood without reference to the sex of the individual.
- Stereotyping a gay employee, for example, seeks to impose society’s norms about how a man (or a woman) should act and, therefore, also involves “sex” discrimination.
- It is the same-sex “association” with someone to whom the employee is attracted that demonstrates the discrimination on the basis of sex.
On the other hand, judges who think that changes to Title VII should be addressed by Congress, and not the courts, argue that sexual orientation is not covered by the language of the law, nor is there the slightest indication that Congress or the public would have understood it to be covered when Title VII was passed.
No one seriously asserts that Congress originally intended to cover sexual orientation when it used the term “sex” in Title VII. Words in a statute are to be understood by the common meaning of the language used when the statute was enacted, and that understanding does not change with the wind. To prove a case of sex discrimination, the person bringing the claim has to prove that the employer engaged in favoritism of one sex over the other.
Given these different outlooks, it is important to note that there are, of course, two questions here. First, what protections does Title VII as written currently provide? Second, what should the law be?
The justices of the Supreme Court struggled with the import of these two questions during the arguments on October 8. The decisions, once rendered by the Supreme Court, will not only resolve the issue of whether Title VII currently prohibits sexual orientation and gender identity discrimination, but is likely to significantly change the landscape of the law governing sex discrimination claims generally. That includes the nature of the claims, the type of evidence that will be relevant, and when and how employers can treat employees differently because they are male or female.
Do separate bathrooms result in unlawful discrimination? What if the situation involves a transitioning employee who still is biologically male, but who wants to use the bathroom of the sex with which he identifies from a gender perspective? What about dress codes? If the court finds that LGBT employees are covered by the statute, are there religious exceptions, and if so what are they? These and a host of other questions will come pouring forth.
If the court determines that Title VII does not cover discrimination based on sexual orientation or gender identity, then those who want to change the law must resort to Congress to have these serious policy issues resolved by elected representatives. There have been efforts to do so since 1974, and there is no reason to doubt that there will be enormous pressure on Congress to act if the court concludes that such discrimination is not presently forbidden.
Soon we will know whether legislative action is necessary to provide LGBT employees with definitive statutory nondiscrimination protections, ones with which a significant majority of the American public now agrees, or whether the Supreme Court simply will interpret a half-century-old law in a way that no one apparently recognized for almost all of the time it has been on the books.
J. Randall Coffey is a partner at Fisher Phillips LLP.