Showdown Over LGBTQ Employment Rights Hits Supreme Court

Oct 8, 2019
Originally published on October 8, 2019 7:03 pm

Updated at 12:59 p.m. ET

The U.S. Supreme Court heard arguments Tuesday in a long-awaited set of cases testing whether the federal law that bars sex discrimination in employment applies to LGBTQ employees.

Specifically, the question is whether employers are free to fire employees because they are gay or transgender.

Justice Neil Gorsuch said the text of Title VII of the 1964 Civil Rights Act, which bars discrimination "because of sex," or "on the basis of sex," appears to favor the plaintiffs in the case, but he wondered whether the court should also consider "the massive social upheaval" that could follow a ruling in favor of LGBTQ workers. The court's conservative justices, who are in a majority, appeared somewhat skeptical of the arguments of the lawyers for the LGBTQ workers.

Justice Samuel Alito, another of the court's conservatives, said if the court decided to update the statute, it might as well "just be a legislature."

Justice Elena Kagan, one of the court's liberal justices, said, however, that employers cannot treat a man who loves other men differently than a woman who loves men.

"I was fired for being gay"

At the front of these cases is Gerald Bostock, who, for 10 years, was the child-welfare coordinator for Clayton County, Ga. His primary responsibility was a program that provides advocates in court for abused and neglected children.

"It was the job I loved, and my employer loved me doing the job," says Bostock, noting that under his leadership, the child advocates program "reached the benchmark of serving 100% of the children in foster care," an "unheard of milestone" for any such program in the greater metro Atlanta region.

But in 2013, Bostock joined a gay recreational softball league. And "from that point on, my life changed, " he says. "Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance and at the time I was fighting prostate cancer. It was devastating."

"In truth ... even I do not fully understand it myself"

Also front and center on Tuesday was Aimee Stephens. She worked for the Harris Funeral Home in Livonia, Mich., as a funeral director for six years, presenting as a man. But by 2012, at age 51, she was in despair over her gender identity and contemplating suicide.

"I stood in the backyard for an hour with a gun to my chest, but I couldn't do it," she says.

Stephens decided she would come out at work as a transgender woman. For eight months, she worked on a letter to her boss and co-workers telling them of her gender identity.

"I have realized that some of you may have trouble understanding this," she wrote, adding, "In truth, I have had to live with it every day of my life, and even I do not fully understand it myself."

Two weeks after giving the letter to her boss, Stephens was fired.

Stephens and Bostock both took their former employers to court, charging that their dismissals were based on sex and thus violated Title VII of the 1964 Civil Rights Act.

The owner of Harris Funeral Homes, Tom Rost, explained in a videotaped interview with his lawyers that he was concerned about how the families of the deceased would react to Stephens who was, in Rost's words, "the face of the Harris Funeral Home."

Neither Clayton County officials nor their lawyers would comment about Bostock's firing.

A "common-sense argument"

But in their briefs, the lawyers in both cases argue that Title VII of the 1964 Civil Rights Act does not apply to sexual orientation or gender status at all. "Everyone understood in 1964 [when the Civil Rights Act passed] that sex meant biological sex," says John Bursch who argued on behalf of Harris Funeral Homes in the Supreme Court. That means that neither women nor men can be treated unequally in the work-place, he says, but that "just does not translate into other categories" such as sexual orientation or gender identity.

Supporting that argument are 15 states, including Texas, and its solicitor general, Kyle Hawkins. The "common-sense" argument, he asserts, is that "sex is not the same as sexual orientation and not the same as gender identity."

But lawyers representing the fired workers counter that the Supreme Court over the last half-century has interpreted the law far more broadly than that. They note that the justices have applied the anti-discrimination statute to a variety of situations that Congress wasn't thinking about in 1964.

For example, "in 1964 you wouldn't find a single dictionary that defined the term 'sexual harassment' and yet the Supreme Court has held that Title VII [of the 1964 Civil Rights Act] prohibits sexual harassment of women" and "also sexual harassment of men," observes Stanford Law Professor Pamela Karlan.

Where and how to draw the line

Indeed, more than two decades ago, the Supreme Court ruled that even same-sex sexual harassment was illegal under the statute. Writing for a unanimous court, conservative Justice Antonin Scalia, said that while same-sex sexual harassment was "not the principal evil Congress was concerned with" in 1964, "statutory provisions often go beyond the principal evil to cover reasonably comparable evils." And, he said, "it is ultimately the provisions of our laws, rather than the principal concerns of our legislators by which we are governed."

Stanford's Karlan, who argued for Bostock on Tuesday, reminded the justices of the court's very first sex discrimination case after enactment of the 1964 law: Phillips v. Martin Marietta Corporation. At issue was an employer's policy barring the hiring of women with young children.

The court ruled unanimously that the policy was illegal sex discrimination. Karlan argues that just as women with children are a subset of women covered by the anti-discrimination law, so too are gay, lesbian and bisexual employees.

"If it's sex discrimination to say, 'You can't work for us if you are a woman and you have children at home, it's also sex discrimination to say you can't work for us because you're a woman and you have a wife at home,' " says Karlan.

Similarly, she maintains, "If you wouldn't fire a man for marrying a woman, but you would fire a woman for marrying a woman, you've discriminated against the woman who works for you."

The transgender argument: politically difficult but analytically stark

The argument for transgender employees may be more politically difficult to sell. But it is arguably more stark. It goes like this: If an employer hires a man and later fires the employee when the employee shows up as a woman, how is that not discrimination based on sex?

Lawyer Bursch will tell the justices that sexual orientation and gender status simply do not fit under the 1964 anti-discrimination formula. He warns that if the court were to rule against the employers in these cases, it would have ramifications beyond employment.

"If we redefine the meaning of sex in federal law," he predicts, it would allow "biological men to identify as women and take women's places on sports teams." Bursch argues that has already happened in some places, with cisgender women losing out in medals to transgender women.

Could employment cases affect school sports?

Federal law does indeed bar sex discrimination in sports programs at schools that get federal money. And the NCAA has developed regulations for when trans student-athletes may or may not participate. But as Stanford's Karlan observes, Title IX, best known for its impact in advancing women's sports, "is a different statute." And the regulations for education funding under Title IX "are different than the rules in the workplace" under Title VII.

Lawyers for the employers respond that Congress in 1964 simply did not anticipate the questions raised in these cases about the scope of Title VII and that Congress, not the courts, should be addressing these issues.

The case has drawn even more attention than anticipated, with dozens of friend-of-the-court briefs on each side. Siding with the employers are business groups that, for the most part, have some religious affiliation. But weighing in on the other side, in favor of protection for gay and trans employees, are 206 major corporations that employ over 7 million workers.

The Trump administration, reversing the position of the Obama administration, will argue in the Supreme Court against the LGBTQ employees.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

DAVID GREENE, HOST:

At the Supreme Court today, a long-awaited showdown over LGBTQ rights and employment. The justices will hear a set of cases testing whether the federal law that bars sex discrimination in employment applies to LGBTQ employees. Specifically, the question is whether employers are free to fire employees because they are gay or transgender. NPR legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG, BYLINE: For 10 years, Gerald Bostock was the child welfare coordinator for Clayton County, Ga. His primary responsibility was a program that provided advocacy in court for abused and neglected children.

GERALD BOSTOCK: It's the job I loved, and my employer loved me doing the job. We actually reached the benchmark of serving 100% of the children in foster care, which was an unheard of milestone for any metro Atlanta program.

TOTENBERG: But in 2013, Bostock joined a gay recreational softball league.

BOSTOCK: And from that point on, my life changed. Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance. And I was recovering from prostate cancer when this occurred. It was devastating.

TOTENBERG: Aimee Stephens is not gay but transgender. She worked for six years as a funeral director for the Harris Funeral Home in Livonia, Mich., presenting as a man. But by 2012, she was in despair over her gender identity.

AIMEE STEPHENS: (Reading) I stood in the backyard for an hour with a gun to my chest, but I couldn't do it and I chose life.

TOTENBERG: Stephens decided she would come out at work as a transgender woman. For eight months, she worked on a letter to her boss and co-workers telling them of her sexual identity.

STEPHENS: (Reading) I realize that some of you may have trouble understanding this. In truth, I have had to live with it every day of my life, and even I do not fully understand it myself.

TOTENBERG: Two weeks after giving the letter to her boss, Stephens was fired. Aimee Stephens and Gerald Bostock both took their former employers to court, charging that their dismissals were based on sex and thus violated Title VII of the 1964 Civil Rights Act, which bars discrimination, quote, "because of sex." Now their cases are before the U.S. Supreme Court. Neither Clayton County officials nor their lawyers would agree to be interviewed about the Bostock firing for this broadcast. But the owner of Harris Funeral Homes, Tom Rost, explained in a videotaped interview with his lawyers why he fired Aimee Stephens.

(SOUNDBITE OF ARCHIVED RECORDING)

THOMAS ROST: The families that we serve - how would they possibly react to this? It's just kind of beyond what you can possibly think of. And this individual - Stephens was a face of Harris Funeral Home.

TOTENBERG: Now, under the 1964 law, customer preference is not a justification for illegal discrimination based on sex. But the employers have a broader defense. It is that Title VII of the '64 act does not apply to sexual orientation or gender status at all. John Bursch represents the Harris Funeral Homes.

JOHN BURSCH: Everyone understood in 1964 that sex meant biological sex, so treating a biological woman less favorably than a biological man because she is a woman. And that just does not translate into other categories.

TOTENBERG: The employers are supported by 15 states, including Texas and its solicitor general, Kyle Hawkins, who makes what he calls a common-sense argument.

(SOUNDBITE OF ARCHIVED RECORDING)

KYLE HAWKINS: Sex is not the same as sexual orientation and not the same as gender identity.

TOTENBERG: Lawyers for the fired workers counter that the Supreme Court over the last half-century has interpreted the law far more broadly than that. Stanford law professor Pam Karlan notes that the justices have applied the anti-discrimination statute to a variety of situations that Congress was not thinking about in 1964.

PAMELA KARLAN: In 1964, you wouldn't find a single dictionary that defined the term sexual harassment. And yet the Supreme Court has held that Title VII prohibits sexual harassment of women but also sexual harassment of men.

TOTENBERG: Indeed, more than two decades ago, the Supreme Court ruled that even same-sex sexual harassment was illegal under the statute. Stanford's professor Karlan, arguing for the gay employees, today will remind the justices of the court's very first sex discrimination case after enactment of the 1964 law. At issue was a challenge to an employer policy that barred hiring women with young children. The court ruled unanimously that the policy was illegal sex discrimination.

KARLAN: And we say, if it's sex discrimination to say you can't work for us if you are a woman and you have children at home, it's also sex discrimination to say you can't work at us because you're a woman and you have a wife at home.

TOTENBERG: She argues that just as women with children are a subset of women covered by the anti-discrimination law, so too are gay and lesbian employees.

KARLAN: If you wouldn't fire a man for marrying a woman and you would fire a woman for marrying a woman, you've discriminated against the woman who works for you.

TOTENBERG: The argument for transgender employees may be politically more difficult to sell, but it's arguably more stark. It goes like this. If an employer hires a man and later fires him when he shows up as a woman, how is that not discrimination because of sex?

Making the counterargument today, lawyer Bursch will tell the justices that sexual orientation and gender status simply do not fit under the 1964 anti-discrimination formula. He warns that if the court were to rule against the employers in these cases, it could have serious ramifications beyond employment.

BURSCH: If we redefine the meaning of sex in federal law, it has implications far beyond this case, including allowing biological men to identify as women and take women's places on sports teams.

TOTENBERG: Federal law does indeed bar sex discrimination in sports programs at schools that get federal money, and the NCAA has elaborate rules for dealing with trans student athletes. But as Stanford's Karlan observes...

KARLAN: Title IX is a different statute, and the regulations under Title IX for having separate sex teams and the like are different than the rules in the workplace.

TOTENBERG: Lawyers for the employers counter that these and many other questions simply were not anticipated by Congress back in 1964, and that given the changes in society since then, it is Congress that should address these issues now, not the courts. Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MAMMAL HANDS' "WRINGER") Transcript provided by NPR, Copyright NPR.