Supreme Court to Answer the Question of Whether LGBTQ People are Protected from Workplace Discrimination

This column was one of the more emotional columns I’ve written for the Philadelphia Gay News.  I am writing this sitting in my hotel room at the Dearborn Inn in Michigan, after visiting the Henry Ford Museum of Innovation which houses the historical bus that Rosa Parks rode when she was arrested for violating a Montgomery, Alabama ordinance requiring her to relinquish her bus seat to a white passenger.  Rosa Parks’ act of defiance sparked one of the largest social movements in history, the Montgomery Bus Boycott, and helped inspire a crusade that led Congress to pass the Civil Rights Act of 1964, which, among other things, bars discrimination on race, color, religion, national origin and sex. 

I had the privilege and honor of sitting in that very seat today and was completely overcome with emotion thinking about the courage Rosa Parks had then, how far we’ve come since and, how far we have yet to go in the fight for true equality for all. 

As of today, only 22 states and the District of Columbia have express protections for LGBTQ workers based on sexual orientation and gender identity enshrined in law, and June of 2020 will be one barometer for how far we have to go in the fight for LGBTQ equality as the Supreme Court of the United States (SCOTUS) has agreed to hear arguments on one of the most unsettled civil rights questions — are LGBTQ people are protected by Title VII in the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, national origin and sex?

For years, the question of whether discrimination on the basis of sex covers sexual orientation and gender identity has matriculated through lower courts, with some states falling on the side of the employer, and others ruling in favor of the LGBTQ worker. The docket for SCOTUS’s current session is full, so these three cases won’t be argued until October, and likely won’t see the light of an official federal ruling until June 2020. The timing is almost guaranteed to influence a furiously anticipated election year which challenges President Trump’s place in the White House.

The three cases in question— R.G. and G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda, and Bostock v. Clayton County, Ga.— center around a transgender woman fired from her funeral director position when she announced her intention to transition, a gay skydiving instructor fired after a customer complained he came out to her, and a social worker fired for inconsistencies in how he handled workplace finances after he was discovered to be a member of a gay recreational softball team.

One of the strongest arguments is that yes, sex discrimination cannot happen unless one takes into account the sex of the worker being discriminated against. The fact of a man loving another man requires the employer consider their employee’s sex to find such an attraction worthy of workplace hostility or termination. Someone born male at birth who presents themselves as female, only to be fired for that presentation, requires the employer to consider the sex of the worker both when they were born, and as they currently present themselves.

The path to SCOTUS for R.G. and G.R. Harris Funeral Homes Inc. v. EEOC began when Aimee Stephens, who was employed by R.G. and G.R. Harris Funeral Homes for six years as Anthony Stephens, began her social transition. After learning that in order to qualify for gender reassignment surgery she must live full-time as a woman for a period of 12 months, Stephens began to present as female at the workplace. Within two weeks, Tomas Rost, the company’s owner, fired Stephens specifically “because he was no longer going to represent himself as a man. He wanted to dress as a woman.”

Alliance Defending Freedom, the conservative legal group who also defended Jack Phillips in the Masterpiece Cake Shop case, represents Rost. Senior counsel John Bursch said in a statement, “Neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity’ — a change with widespread consequences for everyone.”

Stephens won her appeal when her case reached the 6th Circuit Court, which stated in its ruling that it was “analytically impossible” to ignore a person’s sex when deciding to terminate them for being transgender. The 6th Circuit had additional precedent to fall back on with the 1989 SCOTUS decision that ruled it is illegal to discriminate against workers for not conforming to gender stereotypes.

In Altitude Express Inc. v. Zarda, Donald Zarda was let go after he told a customer who was to be strapped to him physically for a tandem skydive that she needn’t worry because he was gay. She later claimed Zarda inappropriately touched her, which was the supposed basis for Altitude Express firing him. The co-executors of Zarda’s estate, who passed away in 2014 in a base-jumping accident, continued the suit after his death. His partner, William Allen Moore, and sister, Melissa Zarda,

The US Court of Appeals for the 2nd Circuit ruled in his favor, stating anti-discrimination laws had protected him: “Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted.” Altitude Express has continued their appeal, leading to the SCOTUS acceptance of their case.

Unfortunately, the case of Bostock v. Clayton County, Ga did not go the way of the LGBTQ community. Gerald Bostock’s claim that he was subjected to homophobic slurs and eventually fired as a social worker after his employers discovered he’s gay was denied by the 11th Circuit Court of Appeals, a decision at odds with the other two Circuit Court decisions. Bostock had received glowing reviews and had won state and national awards for his work as a child welfare services coordinator for Clayton County, GA in the 10 years he held the position. He claims that when they found out he played for an LGBTQ recreational softball league, he was chastised by county employees, and within three months, he was under audit for how he handled funds and within another three months, he was terminated for misuse of county funds, though the county DA did not file charges against Bostock.

The LGBTQ community is, understandably, on pins and needles with SCOTUS agreeing to hear arguments in these cases. Retired Justice Anthony Kennedy, a crucial swing vote in LGBTQ rights cases, has been replaced by Justice Brett Kavanaugh, who joined the court under a cloud and whose confirmation hearings after Trump nominated him were fraught with controversy. Kavanaugh is largely considered more conservative than Kennedy, who was the deciding vote in all the landmark gay rights victories of recent memory.

James Esseks, director of the ACLU’s LGBT and HIV Project, said it best, “[t]he LGBTQ community has fought too long and too hard to go back now, and we are counting on the justices not to reverse that hard-won progress.” He’s right.  Like Rosa Parks, we have fought tooth and nail to attain the protections we have now and whether we experience a setback or not come June 2020, I am confident that our community will continue to show the courage, passion and extraordinary commitment necessary to bring about equality for all. n

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