Today is the day! SCOTUS args on sexual orientation and gender identity discrimination

SCOTUS is back for a new season, and oral arguments kicked off yesterday. We've got a great double feature lined up for today:

Bostock v. Clayton County, Georgia (SCOTUSblog page) and Altitude Express Inc. v. Zarda (SCOTUSblog page):
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (SCOTUSblog page):
Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

Asking a court that leans heavy on textualism and originalism to re-imagine a 1964 sex discrimination statute to cover sexual orientation and gender identity might be a tall order. That said, the Court has issued a string of gay rights-friendly opinions lately, ranging from Lawrence v. Texas in 2003 to Obergefell v. Hodges in 2015. So, we'll see.

Do you want my entirely useless prediction? Of course you do. Chief Justice Roberts cobbles together a compromise position that reaffirms that sex stereotyping violates Title VII, but that Title VII does not cover sexual orientation per se. The four-justice liberal bloc concurs but writes separately to note that they would hold that Title VII does cover sexual orientation per se. In Harris Funeral Home, the Court holds that Title VII covers gender identity per se.

Don't take that to Vegas.

Finally, two reminders:

• These cases only matter because Congress has not amended Title VII to expressly cover (or not) sexual orientation or gender identity - Congress can moot these cases at any time and effectively reverse them after the fact; and

• Many state and local laws prohibit sexual orientation and gender identity discrimination - these cases do not change that. 

It's Happening! SCOTUS to hear sexual orientation and transgender workplace discrimination cases!

Yesterday, the Supreme Court granted certiorari in three cases.

First, the Court consolidated Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, GA. The issue presented is:

Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

 About a year ago, I posted about Altitude Express, and asked "Will this be the case that gets the Supreme Court to weigh in?" Welp, I guess it was. 

Notably, the Supreme Court also granted cert on a separate case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC:

The petition for a writ of certiorari is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

 A slight re-wording from the actual petition - perhaps the "limited" review refers to the exclusion of a RFRA issue presented at the circuit court level?

It will be a while before we get a ruling. Of course, in the meantime, Congress can moot these cases any time it wants. These cases turn on statutory interpretation - Congress could amend Title VII to clearly include/exclude sexual orientation and/or gender identity.

6th Cir.: Title VII prohibits discrimination against transgender and transitioning employees

Earlier today, the Sixth Circuit held in EEOC v. Stephens:

Not official use.

Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.

Title VII prohibits "sex" discrimination but makes no mention of transgender or sexual orientation. However, this is the latest in a line of cases broadening the meaning of sex discrimination, and utilizing gender stereotyping theories, to afford protection to LGBT employees.

Just last week, the Second Circuit held that Title VII prohibits sexual orientation discrimination.

11th Circuit on Sexual Orientation Discrimination Under Title VII

On Friday, the Eleventh Circuit Court of Appeals issued its opinion in Evans v. Georgia Reg. Hosp. The plaintiff alleged that she was discriminated against on the basis of her sexual orientation in violation of Title VII. Of course, Title VII does not specifically list "sexual orientation" as a protected class, so:

Not official use.

Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. She has not. Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.” Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) (internal quotations omitted).

* History lesson: Some District Courts from the Fifth Circuit split off to form the Eleventh Circuit in 1981, so the Eleventh Circuit treats prior Fifth Circuit decisions as binding precedent.

That's not necessarily game over though. As the Court recognized, employees may bring claims under Title VII for discrimination or harassment on the basis of gender nonconformity (or "sex stereotyping"). The Court did not provide much analysis on this issue, but held:

Evans’s pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination. See Surtain, 789 F.3d at 1246. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.

So, it affirmed the District Court's dismissal of her discrimination claim. However, it did reverse the lower court on one key issue - the lower court had dismissed her claim with prejudice. The Eleventh Circuit noted that the plaintiff has a right to amend her complaint once unless amendment would be futile. As she could plausibly plead additional facts to state a claim for gender nonconformity, the plaintiff was granted an opportunity to amend.

I suspect we'll see a petition to rehear this en banc (a request for the entire Eleventh Circuit to hear the case).

Fed. Ct.: Sexual Orientation Discrimination is Prohibited Under Title VII

The EEOC scored a victory in one of its recent sexual orientation discrimination cases. The Western District of Pennsylvania denied a motion to dismiss the claim in EEOC v. Scott Medical Health Center (opinion here).

We already knew that gender stereotyping claims could often fit certain fact patterns involving sexual orientation discrimination. The recent WD PA decision is surprising in the breadth of the holding:  

Not official use. 

The Court holds Title VII's "because of sex" provision prohibits discrimination on the basis of sexual orientation . . . . There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality . . . . [T]his Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII's prohibitions on discrimination "because of sex."

But, wait... doesn't that contradict *binding* Third Circuit precedent?  Like, Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)("It is clear, however, that Title VII does not prohibit discrimination based on sexual orientation."). The Third Circuit approvingly quoted Bibby more recently in Prowell v. Wise Business Forms, Inc. in 2009.

The Court (not very convincingly in my humble opinion) sidesteps that precedent by noting that Bibby did not present "the same arguments or analytical framework as that put forth by the EEOC in this case." The Court then strangely cites district court decisions from outside of the Third Circuit. The Court then notes that one method of statutory interpretation (citing Congress's inaction) has been viewed less favorably in other decisions. The Court then points out that Bibby relied on a lot of case law that pre-dated the SCOTUS gender stereotyping decision in Price Waterhouse (while ignoring that the actual decisions in Bibby and Prowell both *post*-date Price Waterhouse).  And then, to conclude, throws in a reference to Obergefell, the SCOTUS same-sex marriage decision that has nothing whatsoever to do with Title VII.

Because this is not a final order resolving the case, I do not think it can be appealed yet. If the parties continue to litigate and the employer ultimately loses, we could get a reconsideration of Bibby and Prowell at the Third Circuit.

Pennsylvania Gov. Tom Wolf to Sign Sexual Orientation & Gender Identity Anti-Discrimination Executive Order

Pennsylvania Governor Tom Wolf will reportedly "sign an executive order to prohibit discrimination by state contractors against people who are lesbian, gay or transgender." I have not seen the actual order yet, but Gov. Wolf posts his executive orders here - so keep an eye out.

Gov. Wolf

Employers that discriminate against employees on the basis of sexual orientation or gender identity are playing a dangerous game. Many states, unlike Pennsylvania, prohibit such discrimination. Here in Pennsylvania, we do have municipalities with anti-discrimination ordinances that cover sexual orientation and gender identity; and, state employee and state contractors will be covered by executive orders.

On the federal level, you have the EEOC's argument that Title VII's prohibition of sex discrimination already covers sexual orientation and gender identity. Throw in some courts protecting employees under a "gender stereotyping" theory that sounds an awful lot like protection for sexual orientation; and courts protecting transgender employees under Title VII.

Sure, employers can still make the argument that "sexual orientation" and "gender identity" are not expressly covered under Pennsylvania's state law (PHRA) or Title VII... but it's not clear how far that will get them.

EEOC makes the case for Title VII prohibiting sexual orientation discrimination

Last week, the EEOC filed an amicus brief in an Eleventh Circuit case, Burrows v. The College of Central Florida. You can read the EEOC's brief here.

In its brief, the EEOC lays out its argument that "Sexual orientation is cognizable as sex discrimination under Title VII." The headings from its brief:

A. Sexual orientation discrimination necessarily involves sex stereotyping, in violation of Title VII 

B. Sexual orientation discrimination constitutes associational discrimination that violates Title VII 

C. Sexual orientation discrimination is, by definition, discrimination “because of . . . sex,” in violation of Title VII. 

D. The contrary cases on which the district court relied are not persuasive authority

I think the EEOC is fighting an uphill battle here, but I guess we'll see. Homosexual employees have had some success arguing the "gender stereotyping" theory. For an example from the Third Circuit, see Prowel v. Wise Business Forms, Inc. (prior Lawffice Space coverage here).

"Bow at the Altar . . . of Political Correctness" - COTW #164

Gender stereotyping claims, meet the super-manly world of ironworkers - men's men. Macho men. Masculine men. What "real men" should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let's start with the harassing conduct. The crew superintendent called the plaintiff "pu--y," "princess," and "fa--ot"; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that's "kind of gay."

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing "shop talk" types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):

By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . . 

In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one's speech is chilled as a condition of keeping one's job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a ‘code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate. 

The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”

Wow, tell us how you really feel! So, what's the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation - but trust me, if you're counting votes at a circuit court in an en banc review of a jury verdict then you've already lost even if you win. That type of legal battle doesn't come cheap.

Miles on Gender Stereotyping

Article II of my interview with Dawn Lomer is now on i-Sight Blog: Boys, Girls and Workplace Discrimination. It covers gender stereotyping and its implications for appearance-based discrimination. Enjoy! If you missed the first article, check it out too: Why Appearance-Based Discrimination Isn't Illegal.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

3d Circuit Applies Title VII to Gay Man

Before I am accused of using a misleading title, let me state unequivocally that the 3d Circuit did not hold Title VII covers homosexuals. But in Prowel v. Wise Business Forms, Inc., Title VII potentially provided protection to a man who:

"has a high voice and walks in an effeminate manner . . . . did not curse and was very well groomed; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot 'the way a woman would sit.' [He] also discussed things like art, music, interior design, and decor, and pushed the buttons on his nale encoder with 'pizzazz.'"

And yes, he is a gay man.

His co-workers harassed him mercilessly, calling him "Princess" and "Rosebud," not to mention anti-gay slurs. They also placed "man-seeking-man"newspaper ads with mocking commentary on his workstation.

The Court concedes that it is possible Prowel was harassed because of his sexual orientation. The Court also notes, however, that it is possible Prowel was "harassed for his failure to conform to gender stereotypes." The Court concluded that "[b]ecause both scenarios are plausible, the case presents a question of fact for the jury and is not appropriate for summary judgment."

This provides homosexual employees with a potential Title VII claim for gender stereotyping. It may become somewhat irrelevant if Congress passes ENDA. I'll also note that some state statutes, and even some local ordinances, already prohibit discrimination based on sexual orientation.