Supreme Court to Decide Whether Sexual Orientation is a Protected Class in the Workplace


The United States Supreme Court heard some of the most anticipated legal issues of the October court term.  Among these cases, the Court will decide whether Title VII in the Civil Rights Act of 1964 (Title VII), one of the fundamental federal employment discrimination statutes, covers sexual orientation discrimination in the workplace.  Currently, Title VII explicitly prohibits discrimination in employment based on race, color, religion, sex, and national origin.  The statute has never been read to include sexual orientation as a protected class bases from the Supreme Court or by an act of Congress.  Two cases concerning this issue were consolidated, one from the Eleventh Circuit and one from the Second Circuit, with similar fact patterns and totally different conclusions, which created a circuit split on the issue.

The Supreme Court heard oral arguments on October 8, 2019, and it is important to understand the arguments for and against the issue that is before the Court.

The Background

In Zarda v. Altitude Express, Inc., 855 F.3d 100 (2d Cir. 2018), Donald Zarda was a skydiver instructor who performed tandem skydives where he would be tied to the back of a client, so he could deploy the parachute and supervise the jump. Id. at 109.   Being in close proximity to another person, Zarda would often inform clients of his sexual orientation, to try to mitigate awkwardness that would arise from the fact he would be tied to the back of female clients.  After one certain skydive, a client complained about Zarda’s behavior, and Zarda was fired shortly thereafter. Id.

The Second Circuit, sitting en banc, reversed all precedent to explicitly permit sexual orientation as a form of sex discrimination prohibited by Title VII in the Civil Rights Act of 1964 because sexual orientation is a function of sex. Id. at 108.  By doing so, the Second Circuit was only the second Circuit Court to explicitly read sexual orientation as protected class under Title VII.

In Bostock v. Clayton County, Georgia, 723 Fed. Appx. 964 (11th Cir. 2018), Gerald Bostock worked for Clayton County as the Child Welfare Services Coordinator.  Outside of work, Bostock was involved in a gay recreational softball league that he actively promoted in his work as a good volunteer opportunity.  A few months later, Bostock’s department was audited, and he was ultimately terminated for “conduct unbecoming one of its employees.”

The Eleventh Circuit upheld its precedent that sexual orientation is not prohibited by Title VII.  Without sitting en banc, the Eleventh Circuit cannot overturn its precedent and declined to do so in this case.

Both plaintiffs believed that they were fired for sexual orientation.  Both cases were decided in the same year, yet the two circuits answered the issue with different legal reasoning.

The United States Equal Employment Opportunity Commission (EEOC) investigates employment discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disability Act of 1990 (ADA), and the Genetic Information Nondiscrimination Act of 2008 (GINA).  In a legal issue, such as whether sexual orientation is encompassed in Title VII, the EEOC will create a policy about how it will be investigated in the program.  The EEOC changed their policy in 2015 to include investigation of employment discrimination under Title VII to include sexual orientation as a subset of sex discrimination.

In addition to the EEOC policy, twenty-three states have passed state laws that prohibit sexual orientation discrimination in the workplace.  The Second and Seventh Circuit have ruled in favor of encompassing sexual orientation discrimination in Title VII, while the Eleventh Circuit has ruled conversely.

Are sex and sexual orientation separate and distinct classifications?

The main arguments for sexual orientation to be included in Title VII is first, that sexual orientation is a type of sex discrimination, and second, the statutory intent behind passing Title VII was to read sex discrimination broadly, to include any form of sex discrimination that might arise in the workplace.  Conversely, opposing that sexual orientation as a protected class argues that sex and sexual orientation are two separate and distinct classifications, so sexual orientation cannot be a type of sex discrimination. The second argument opposing the issue focuses on the original public meaning of Title VII that did not include sexual orientation as a protected class. There are other arguments that are being made, but these two arguments are seen the most when discussing this legal issue.

How sexual orientation is a function of sex

There are two primary prior Supreme Court cases that support the finding that sexual orientation is a function of sex: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

In Price Waterhouse, Ann Hopkins was up qualified for a partner position at the accounting firm.  Pursuant to procedures, current partners were required to submit comments on each candidate for partnership. Price Waterhouse, 490 U.S. at 231. Ann Hopkins, the only female candidate, was given comments that she was masculine, and was told to become partner she had to become more feminine in the way she walked, talked, and acted. Id. at 232.  This type of behavior is defined this as sex stereotypes: the belief that as a certain gender, a person must act in accordance with those stereotypes.  Id. at 250.  A Supreme Court plurality found that an employer who discriminates based on sex stereotypes is discriminating based on sex.  Id. at 251. Most famously, the Supreme Court stated:

“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

Price Waterhouse v. Hopkins, 490 U.S. at 251, citing Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1973), quoting Sprogis v. United Air Lines, Inc., 444 F. 2d 1194, 1198 (7th Cir. 1971).

In Oncale v. Sundowner Offshore Services, Inc., Joseph Oncale was working on an oilrig with an eight-person work crew.  Oncale, 523 U.S. at 77.  Oncale was subjected to sex-related and humiliating actions in front of the entire work crew.  In addition, Oncale was physically assaulted in a sexual manner and threated with rape by another person on the work crew. Id.  The Supreme Court held that the language in Title VII that prohibits sex discrimination includes same-sex workplace harassment. Id. at 79.  In rejecting the argument that Congress did not intend to cover same-sex sexual harassment claims in the workplace in Title VII, the Supreme Court responded with, “statutory prohibitions often go beyond the principal evil to cover reasonable comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 80.

To continue using Oncale’s logic, Congress intended to prohibit sex discrimination when Title VII was passed, but the statute can prohibit other forms of sex discrimination beyond what Congress envisioned in 1964 by covering “reasonably comparable evils.” Brief for Petitioner at 44, Bostock v. Clayton County, Georgia, No. 17-1618 (filed June 26, 2019). This language taken from the opinion gives a broad meaning to sex discrimination under Title VII, so the key of the analysis is whether members of one sex are exposed to disadvantageous terms or conditions of employment, which members of the other sex are not exposed to. Id. at 45.  The motive behind the discrimination does not matter, only that there is discrimination based on sex.  Therefore, a broad interpretation of Title VII that Oncale calls for would cover sexual orientation discrimination because all that is required by Title VII is to make a showing that there was discrimination “because of . . . sex.”  Id.

To include sexual orientation as a function of sex discrimination, the argument for inclusion uses the same logic from Price Waterhouse.  Sexual orientation should be included in sex discrimination because to say otherwise constitutes impermissible sex stereotyping. Id. at 24.  Sex stereotyping comes in many different forms based on what is viewed as traditional roles.  For example, based on a traditional role, a stereotype would be that men should be attracted to women. This stereotype gets “broken” when a man is instead attracted to another man.  Because sexual orientation cannot be defined without including the sex or gender of that male, it should be also considered as part of sex.  Id. at 27.

Therefore, in order to discriminate based on sexual orientation, the employer must consider an employee’s sex. If the employer treats an employee differently based on that consideration, then it is sex discrimination under Title VII based on impermissible sex stereotyping. Id. at 28.

How sexual orientation is a separate and distinct concept from sex

Title VII does not prohibit functions of sex in its language prohibiting discrimination based on sex.  In 1978, Congress expanded the definition of sex to include some functions of sex, including pregnancy, childbirth, or related medical conditions. Brief for Petitioner at 31, Altitude Express, Inc. v. Zarda, No. 17-1623 (filed Aug. 16, 2019); citing Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. 2000e(k)).  Additionally the Supreme Court has already refused to read Title VII to include characteristics outside of the text, even if they are considered a function of sex in Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88-91 (1973). Brief for Petitioner at 32.  For example, in Espinoza, the Supreme Court refused to interpret the term “national origin” to include citizenship or alienage.  Although citizenship and alienage are functions of one’s national origin, the Court rejected the argument that employment decisions based on alienage are discrimination based on national origin.  Brief for Petitioner at 32.  Because the Supreme Court has already rejected the functions of another Title VII protection, they should reject sexual orientation as a function of sex discrimination here.

The logic from Price Waterhouse does not create sexual orientation protections under Title VII.  The dissent notes that there is no independent cause based on sex stereotypes, but only that evidence of sex stereotypes can show sex discrimination. Brief for Petitioner at 40; citing Price Waterhouse v. Hopkins, 490 U.S. at 258, 294 (Kennedy, J., dissenting).  Therefore, in order to use sex stereotypes as an evidentiary function, the sex stereotypes must show disparate treatment of men and women resulting from sex stereotypes, which is actionable under Title VII. Id. at 42; citing Price Waterhouse, 490 U.S. at 251.  An employer who disapproves of homosexuality is expressing a disapproval that includes both men and women. Brief for Respondent at 37, Bostock v. Clayton County, Georgia, No. 17-1618 (filed Aug. 16, 2019); citing Zarda, 883 F.3d at 158 (Lynch, J., dissenting).  Because the disapproving trait can be present in both men and women, an employer’s objection to homosexuality applies to both men and women, and the objection is not a result of a sex stereotype. Id. at 40.

Additionally, Oncale does not abandon the plain meaning of Title VII, but instead illustrates the meaning.  The original public meaning of Title VII is whether members of one sex are exposed to disadvantageous terms or conditions of employment which members of the other sex are not. Id. at 18-19; citing Oncale, 523 U.S. at 80.  The decision applies Title VII fixed meaning prohibiting discrimination because of an individual being male or female, and the target of harassment falls within Title VII because it is based on the employee’s sex. Id. at 19.  Finally, sexual orientation is not a “reasonably comparable evil” like same sex harassment because it is not one of the principal concerns of Congress in enacting Title VII.  Meaning, it does not subject members of one sex to disadvantageous terms and conditions of employment which members of the other sex are not exposed to. Id. at 19-20 n.8.

Legislative history: does congressional intent support the inclusion of sexual orientation? Statutory intent supports the argument

Petitioners argue that the original public meaning that the Respondent uses is too narrow viewed for what Congress intended when Title VII was passed. Instead, “sex” as used in Title VII, is read to include “the sphere of behavior dominated by the relations between male and female,” and “the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct.” Brief for Petitioner at 32, Bostock v. Clayton County, Georgia, No. 17-1618 (filed June 26, 2019); citing Webster’s New International Dictionary of the English Language 2296 (2d unabridged ed. 1961).

Additionally, Congress amended Title VII in 1978 to include that the term “because of sex” includes on the basis of pregnancy, childbirth, or related medical conditions. The purpose behind adding those specific words to the language “because of sex” was to ensure that Title VII protected against all forms of employment discrimination based on sex. Id. at 35; citing S. Rep. No. 95-331, pp. 2-3; H.R. Rep. No. 95-948, pp. 3- 4.

Together, with the amendment of Title VII and case law, Title VII has been read as a broad definition in “because of sex.” Id. at 37.  In Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65 (1986), the Supreme Court expanded the definition “because of sex” to include sexual harassment in the workplace that results in creating a hostile work environment. The Court in Price Waterhouse recognized the possibility of other forms of sex discrimination and that Title VII was, “meant to condemn even the decisions based on a mixture of legitimate and illegitimate considerations.” Brief for Petitioner at 38-39; citing Price Waterhouse, 490 U.S. at 421. Holdings of these cases show that the language of Title VII is not limited to forms of sex discrimination that motivated it enactment. Id. at 39; citing Newport News, 462 U.S. at 679-80.

The original public meaning of Title VII does not include sexual orientation discrimination

The starting point for any analysis of statutory language begins with the statutory text itself. Brief for Petitioner at 12, Altitude Express, Inc. v. Zarda, No. 17-1623 (filed Aug. 16, 2019); citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003).  Plainly, Title VII bars employers from “discriminat[ing] against any individual . . . because of such individual’s . . . sex.” Id. at 12; citing 42 U.S.C § 2000e-2(a)(1).  Respondent, citing to the American Heritage Dictionary of the English Language (1st ed. 1969), argue that sex is defined as a person’s status as either male or female determined by reproductive biology.  Therefore, to discriminate based on sex, employers must treat individuals of one sex better or worse than similarly situated members of the other sex were or would have been treated. Id. at 13.

Title VII allows for treating the two sexes differently, so long as it does not treat one sex worse than the other. Id.  This is why Title VII allows sex-specific employment policies, such as restroom access, fitness standards, and dress codes.  If Title VII was meant to cover all differentiations based on sex, then Congress’ language would have been “differentiat[ing] upon the basis of sex,” which is a phrase used elsewhere in Title VII. Id. at 14. See 42 U.S.C. 2000e-2(h).

The ordinary meaning of the word “sex” does not include the concept of sexual orientation. Brief for Petitioner at 17; citing Hively, 853 F.3d at 363.  The words plainly describe different traits, and the two traits are never used interchangeably. Id.  As two different concepts, sex discrimination and sexual orientation discrimination require two types of motives and treatment. Id.  For example, sex discrimination is treating one sex more favorably than the other, while sexual orientation does not advantage one sex. Id. at 17.

Read in plain language, the purpose of including “sex” in Title VII is to ensure men and women are afforded “equality of employment opportunities.” Id. citing McDonnell Douglas Corp. v. Green, 411 U.S. 492, 800 (1973).  To include sexual orientation in the same category would guarantee that gay and heterosexual employees are treated the same. Id. at 18.

There is an absence of clear statutory language prohibiting employment decisions based on sexual orientation. Id. at 25.  From Title VII’s enactment until 2017, eleven Circuit Courts concluded that Title VII does not prohibit sexual orientation discrimination. Id. at 22.  The EEOC agreed with this consensus until 2015. Id.  When Title VII was amended in 1991, there still was consensus from the EEOC and all circuits that Title VII did not cover sexual orientation. Id. at 26.  Additionally, there is no state court that has interpreted sexual orientation discrimination based on gender discrimination. Id. at 23.  Therefore, based on the judicial history of Title VII, sexual orientation should not be read as sex discrimination.

What is next?

The ultimate effect of the Supreme Court decision will has three possible outcomes.  First, the Court could find that Title VII include sexual orientation discrimination under sex discrimination.  Second, the Court could exclude sexual orientation from Title VII, and call to Congress to pass a law that includes sexual orientation in Title VII. Finally, the Court could exclude sexual orientation discrimination under Title VII, and call to state governments to pass a state law excluding sexual orientation discrimination.  The Court is mostly divided on this issue, and leaves open speculation for how this case will be decided. Now that both arguments have been heard, the only thing left to do is wait and anticipate a decision that will alter the lives of countless Americans, regardless of which way the Court rules.

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About Kelley Beck (2 Articles)
Kelley is a third-year student at Campbell University School of Law. She is a North Carolina native and originally from Cary. Kelley received her Bachelor's degree in Political Science with a History concentration from the University of South Carolina in Columbia, SC. Kelley has interned with both the North Carolina Department of Labor Retaliatory Employment Discrimination Bureau and the Equal Employment Opportunity Commission. Additionally, Kelley serves as the Treasurer of Law Students Against Sexual Assault and Domestic Violence Club here at Campbell. Kelley's professional interests include employment law and constitutional jurisprudence.