Trump's Department of Justice asked the U.S. Supreme Court to rule, in two consolidated cases, in a way that would establish the legality of employers' firing workers on the basis of their sexual orientation.
In August 2019, we received multiple inquiries from readers about the accuracy of news reports that U.S. President Donald Trump’s administration had asked the U.S. Supreme Court to rule that it was legal for employers to fire workers on the basis of their sexual orientation.
On Aug. 23, the Huffington Post, for example, published an article with the headline, “Trump Administration Asks SCOTUS to Legalize Firing LGBTQ Workers Based on Sexuality,” which reported that:
“The Trump administration is urging the Supreme Court to use a forthcoming handful of LGBTQ rights cases to legalize firing someone because of their sexual orientation. In an amicus brief filed Friday, the Justice Department argued that a trio of cases set to appear before the Supreme Court this fall should be used to limit Title VII of the Civil Rights Act of 1964, which prohibits discrimination ‘because of sex.’ Under the Justice Department’s reading of Title VII, ‘sex’ as written in the Civil Rights Act doesn’t mean sexual orientation. Therefore, they argue, the law shouldn’t be used to protect gay, lesbian and bisexual workers.”
Similarly, Buzzfeed published an article with the headline, “The Trump Administration Asked the Supreme Court to Legalize Firing Workers Simply for Being Gay,” which reported that:
“The Trump administration took its hardest line yet to legalize anti-gay discrimination on Friday when it asked the Supreme Court to declare that federal law allows private companies to fire workers based only on their sexual orientation. An amicus brief filed by the Justice Department weighed in on two cases involving gay workers and what is meant by Title VII of the Civil Rights Act of 1964, which bans discrimination ‘because of sex.’ The administration argued courts nationwide should stop reading the civil rights law to protect gay, lesbian, and bisexual workers from bias because it was not originally intended to do so.
“That view conflicts with some lower court rulings that found targeting someone for their sexual orientation is an illegal form of both sex discrimination and sex stereotyping under Title VII. Those courts have found, to illustrate the point, that a gay man wouldn’t be targeted if he were instead a woman dating a man; thus he faced discrimination because of his sex.”
Those reports were highly accurate. The Trump administration, through the Department of Justice (DOJ), did indeed file a brief before the U.S. Supreme Court, asking the court to make decisions that would set a judicial precedent in which existing federal non-discrimination law does not forbid employers from firing workers on the basis of their sexual orientation, as a form of sex discrimination.
In practice, this would establish a precedent whereby firing an employee for sexual orientation would not, in and of itself, be illegal. As such, the reports mentioned above fairly summarized this set of circumstances as the Trump administration asking the Supreme Court to legalize firing lesbian, gay and bisexual workers on the basis of their sexual orientation.
In April 2019, the U.S. Supreme Court consolidated two separate discrimination cases: “Bostock v. Clayton County” and “Altitude Express v. Zarda.” The issues involved are somewhat nuanced and complicated in places, so it’s worth taking a look at the background before examining what Trump’s DOJ has actually said.
Based on the facts presented in two U.S. Court of Appeals cases, two U.S. district court cases, and a Supreme Court brief filed by the DOJ, the following is a rough outline of the sequence of events in each case.
Gerald Lynn Bostock is a gay man who sued his employer, Clayton County, Georgia, in 2013, after officials fired him from his job as a child-welfare services coordinator attached to the county’s juvenile court. The county terminated his contract for “conduct unbecoming” after an audit of his handling of certain work-related funds.
Bostock denied any wrongdoing and insisted the true motivation for his firing was homophobic discrimination after his participation in a gay amateur softball league allegedly caused ill feeling towards him among some of his colleagues. He filed a sex-discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC), claiming “I believe that I have been discriminated against because of my sex (male/sexual orientation),” and he sued his former employer in the U.S. District Court for the Northern District of Georgia, claiming he was fired “based on his sexual orientation and failure to conform to a gender stereotype.”
The District Court dismissed Bostock’s case on several grounds, but primarily because federal anti-discrimination law, in the form of Title VII of the 1964 Civil Rights Act, does not explicitly include sexual orientation among the protected traits that can form the basis of a discrimination claim (those being sex, race, religion, national origin, age, pregnancy and disability).
The court also rejected Bostock’s claim that he had been terminated for his “failure to conform to a gender stereotype,” finding that he had not presented any evidence to support it, and also concluding that it was “bootstrapped” to his primary claim because his attorneys correctly predicted that a lawsuit based only on a “pure” sexual-orientation discrimination claim would be dismissed.
Sex-discrimination jurisprudence in the U.S. includes an acknowledgement of “sex stereotyping,” as we have examined in a previous article:
“In a precedent-setting 1988 case called ‘Price Waterhouse v. Hopkins,’ the U.S. Court of Appeals for the D.C. Circuit said evidence of workplace discrimination based on sex and gender stereotypes could be regarded as de facto evidence of sex-based discrimination. That case revolved around a woman who was denied a partnership at the firm, partly because some decision-makers viewed her behavior and demeanor to be insufficiently ‘ladylike.’ The court found that while the discrimination was not, strictly-speaking, based on the mere fact of her sex, it was inextricably linked to her sex, and could not, by definition, have taken place without reference to her sex. As such, the court concluded, it amounted to legally prohibited sex discrimination.”
The District Court also dismissed Bostock’s suit on a third, somewhat more technical ground — that he had not exhausted the administrative solutions available to him before taking his case to court. His initial complaint to the EEOC did not mention gender stereotyping, so in brief, the court concluded he hadn’t given the EEOC an opportunity to deal with the full scope of the claims he would later take to court.
In August 2017, Bostock appealed the District Court’s dismissal, but three judges from the U.S. Court of Appeals for the 11th Circuit upheld the dismissal in May 2018. The judges cited a 1979 5th Circuit case (Blum v. Gulf Oil) as binding precedent. In that case, the court had found that Title VII does not allow for sexual-orientation discrimination claims. The Court of Appeals also found that Bostock had “abandoned” his gender stereotyping claim because he did not specifically appeal the District Court’s dismissal of this component of his case.
In June 2018, Bostock took his case to the U.S. Supreme Court, and in April 2019, it was consolidated with the second case in question.
Donald Zarda was a gay man and a skydiving instructor on Long Island, New York, who was fired in 2010 after a complaint from a female client. His employer, Altitude Express, terminated his employment on the basis that the woman had complained that Zarda, while engaging in a tandem sky dive, had touched her inappropriately, telling her he was gay as a way of excusing his actions.
Zarda denied any wrongdoing, saying that he had disclosed his sexual orientation merely in the hope of allaying any concerns or discomfort the woman may have had about being strapped to a man during the jump. According to him, his straight, male colleagues routinely engaged in similar banter with male clients, as a way of “breaking the ice” for potentially nervous first-time skydivers.
Zarda also alleged that his boss (who ultimately fired him in July 2010) had made homophobic remarks to Zarda, had ordered him not to wear pink clothing and to cover up pink toenail polish, as part of a pattern of alleged hostility towards Zarda, who was known to his boss and colleagues to be gay.
Zarda filed a complaint with the EEOC and then sued Altitude Express in the U.S. District Court for the Eastern District of New York in September 2010. He claimed that he had been fired “because of his sexual orientation,” in violation of New York state law, and “because his behavior did not conform to sex stereotypes,” in violation of federal sex-discrimination law, as we outlined above. (He made other claims about overtime and minimum wage, but they are not relevant to this article.)
Four years later, in March 2014, the District Court threw out Zarda’s sex-stereotyping claim, but sent the sexual orientation claim forward for trial. In October 2014, Zarda died in a BASE jumping accident in Switzerland. He was 44 years old. His sister, Melissa Zarda, and his former partner William Allen Moore, as co-executors of his estate, became the plaintiffs and continued with the litigation.
In October 2015, a jury decided against Zarda and Moore and dismissed the discrimination and other charges against Altitude Express. Zarda and Moore appealed the District Court’s decision to dismiss the Title VII gender stereotyping claim before the U.S. Court of Appeals for the 2nd Circuit.
In April 2017, a panel of three Court of Appeals judges decided against Zarda and Moore, finding that the District Court had based its dismissal on a 1999 2nd Circuit decision in “Simonton v. Runyon.” There, a panel of 2nd Circuit judges had ruled that federal sex-discrimination law does not allow for sexual-orientation claims. The 2017 2nd Circuit panel declined to overturn the District Court’s decision, in part because that would require overturning the 1999 decision in “Simonton v. Runyon,” something a three-judge panel does not have the authority to do.
However, in February 2018, the 2nd Circuit Court of Appeals met “en banc” (that is, every judge took part as opposed to a panel of three). On this occasion, the court rather dramatically overturned its own precedents in “Simonton v. Runyon” (discussed above) and “Dawson v. Bumble & Bumble” (a 2005 gender stereotyping/sexual orientation workplace discrimination case.)
The court did that in light of several developments that had taken place after it decided those precedents in 1999 and 2005. Those included recent moves by other Court of Appeals circuits to revisit the question of whether discrimination based on sexual orientation was impermissible sex discrimination under federal law, and a 2015 decision by the EEOC in “Baldwin v. Foxx,” which found that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”
Having overturned the relevant precedents, the 2nd Circuit also vacated the District Court’s decision to dismiss Zarda’s gender-stereotyping discrimination claim. Chief Judge Robert Katzmann wrote: “… We now hold that Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex.'”
Altitude Express and its lawyers brought the case before the U.S. Supreme Court, and it was consolidated with “Bostock v. Clayton County” in April 2019.
The DOJ’s stance
On Aug. 23, U.S. Solicitor General Noel Francisco filed a Supreme Court brief in the consolidated Bostock-Zarda case on behalf of the DOJ and the Trump administration. As regards “Bostock,” the DOJ brief asked the Supreme Court to uphold the 11th Circuit’s decision to affirm the District Court’s dismissal of Bostock’s discrimination claims. As regards “Zarda,” the DOJ asked the Supreme Court to overturn the 2nd Circuit’s decision to vacate the District Court’s dismissal of Zarda’s discrimination claim.
The question at stake in the Bostock-Zarda case is: “Whether the prohibition in Title VII of the Civil Rights Act of 1964 … against employment discrimination ‘because of … sex’ encompasses discrimination based on an individual’s sexual orientation.”
In its brief, the DOJ argued that Title VII does not allow for sex-discrimination claims based on an individual’s sexual orientation, for reasons that included the following:
- “Sex” in Title VII means biological sex, male and female, and not sexual orientation. It meant that when the legislation was written, and this narrow meaning is reinforced by the fact that Congress has repeatedly declined to add sexual orientation to federal discrimination statutes.
- Discrimination based on sex requires a worker of one sex being unfairly burdened or favored in comparison with a similarly situated worker of the other sex. A policy or decision that merely has to do with a worker’s gender (e.g., a man being fired for being in a relationship with another man, while a woman who is also in a relationship with a man is not fired) doesn’t pass this sex-discrimination test. Otherwise, any sex-specific policy (including dress codes and single-sex bathrooms) would have to be regarded as a violation of Title VII.
- If an employment policy or decision would have an equally negative effect on a gay man and a gay woman, it doesn’t cross the threshold of impermissible sex discrimination, because it doesn’t unfairly burden a homosexual person of one gender over a homosexual person of another gender.
- Sexual-orientation discrimination is not, in and of itself, impermissible sex stereotyping, because sex stereotyping only amounts to sex discrimination if it has the effect of unfairly burdening or favoring workers of one gender over similarly situated workers of the other gender.
In its brief before the U.S. Supreme Court in the consolidated Bostock-Zarda case, the DOJ asked the court to rule that discrimination based on sexual orientation alone is not prohibited under Title VII’s ban on sex discrimination. If the court were to follow the DOJ’s recommendation, it would impose a major precedent that would bind lower courts and likely preclude successful future Title VII sex-discrimination claims based on sexual-orientation discrimination.
The only way to change that state of affairs would likely be for Congress to pass a measure that explicitly added sexual orientation to anti-discrimination statutes, as a separate protected trait, along with sex, race, religion, and so on.
As such, the DOJ has effectively asked the Supreme Court to rule in a way that would establish an employer could fire an employee purely on the basis of the employee’s sexual orientation, without that employer being regarded as having violated federal anti-discrimination law.
The news reports we mentioned above summarized these facts fairly and without misleading readers when they claimed that the Trump administration, through the DOJ, had asked the Supreme Court to “legalize firing workers simply for being gay,” or “over sexual orientation,” or “to legalize workplace discrimination against gay employees.” Those claims were an accurate summary of the facts.
In its report, the Huffington Post referred to “a trio of cases,” and used the term “LGBTQ” (lesbian, gay, bisexual, transgender and questioning). That was a reference to the consolidated Bostock and Zarda cases, as well as a separate case that will also go before the Supreme Court in October 2019, “Harris Funeral Homes v. EEOC.”
That third case (which we have previously examined in depth) has significant areas of overlap with the Bostock-Zarda case, but has to do specifically with whether Title VII sex discrimination encompasses discrimination on the basis of transgender status. The DOJ has also filed a brief in that case, asking the court to rule that Title VII does not allow sex-discrimination claims on the basis of transgender status, thereby (in a similar manner to its Bostock-Zarda brief) asking the court to legalize firing workers simply because they are transgender. In this way, the Huffington Post’s reporting was accurate.