After hearing oral arguments earlier this week, it seems there exists a sole certainty regarding the U.S. Supreme Court’s eventual decision on whether Title VII prohibits workplace discrimination based on sexual orientation and gender identity. That certainty? The vote is extremely likely to be close.
However, whether the court sides with the employees or employers is no slam-dunk in either direction, with the final decision expected sometime in mid-2020, possibly June. Based on their line of questions (or lack thereof) this week, reading the mind of every Supreme Court justice is difficult, at best.
The decision entails three cases with the argument largely turning on the definition of “sex” under Title VII, and specifically whether sexual orientation and gender identity fit under the “sex-stereotyping” theory of discrimination that was recognized by the Supreme Court in Price Waterhouse v. Hopkins in 1989, according to Andrew Turnbull, of counsel with Morrison & Foerster LLP, a global law firm. Turnbull, along with other employment-law attorneys interviewed, read the argument transcripts from Tuesday’s highly anticipated two-hour session.
Specifically, Turnbull explains, attorneys for the plaintiff employees involved argued that discriminating against a man for being attracted to another man or against a transgender worker for changing genders are both forms of sex stereotyping that fall under the court’s ruling in the 1989 Price Waterhouse case.
On the other hand, Turnbull says, “employers’ attorneys and Solicitor General Noel Francisco, while recognizing Price Waterhouse as good law, claimed that ruling in favor of the employees would create new protected categories not covered by the definition of ‘sex’ under Title VII.”
Mark Phillis, a shareholder with employment law firm Littler Mendelson, “found it surprising” that there was scant discussion of the role statutory interpretation may play in how the justices may reach their decision, particularly given the central role in played in the Seventh Circuit’s decision in Hively. In that case, a groundbreaking 8-3 decision, the full Seventh Circuit Court of Appeals ruled that workplace discrimination based on sexual orientation violates federal civil-rights law.
Phillis adds that the broader consequences of the court’s ruling in these cases, particularly as it relates to religious objections, certainly seemed to weigh on the minds of several of the justices. According to Phillis, advocates for the expansion of the coverage of Title VII did their best to redirect the court to the language of the law, not the broader policy implications of a ruling in their clients’ favor.
“As you know, it is difficult to read much into the questions asked at oral argument and to project the ultimate outcome based on it,” he says. “If anything, the arguments in these cases today seem indicate that the rulings will be from yet another divided Supreme Court.”
Littler shareholder Jim Paretti, former chief of staff and senior counsel to the acting chair of the EEOC, notes that a number of justices couched the issue in terms of the court choosing to make a “policy decision.” Yet, Paretti believes the response from Justice Elena Kagan addressed that objection cleanly: Justice Kagan said the case is not a policy question, but a textual one, and that is the lodestar of the court’s jurisprudence, Paretti says.
If the court finds for no Title VII coverage, Paretti predicts it will do so based on the “equal-opportunity discriminator,” who fires both gay men and lesbians, and is thus, arguably, not discriminating on the basis of “sex.” However, he adds, Justice Neil Gorsuch in his questioning did seem to recognize that at least one part of the two-comparator issue is, in fact, sex.
“Counsel for [plaintiffs] Mr. Zarda and Mr. Bostock did a good job of pointing out that if you argue ‘a man marries a man should be compared to a woman marrying a woman’ you are varying TWO factors,” Paretti says. “Justice Gorsuch seemed to recognize that as problematic, and that at least one of the variables is sex. If he finds that there is coverage, I expect that may be a pivotal point.”
The question posed by Justice Ruth Bader Ginsburg regarding religion answers the scenario of the “equal-opportunity discriminator who treats gay men and lesbian woman equally poorly,” Paretti says. He explains that, if an employer was told by a hiring manager, “I am not going to tell you the religion of the candidate, but I will tell you the candidate is in an interfaith marriage”—or, better yet, “I won’t tell you the race of the candidate, just that he’s in a mixed-race marriage”— “that would plainly be discrimination under well-settled Title VII principles.”
Morrison & Foerster’s Turnbull notes that Justice Gorsuch may prove to be a pivotal swing vote. Despite the Trump-appointed justice’s conservative leanings, he said that sex “appears to be a factor” employers consider when firing LGBTQ employees. Justice Gorsuch later seemed to back away, however, when he indicated that finding sexual orientation and gender identity to be protected classes would be a “close” call that could cause “massive social upheaval” if the court rules in the employees’ favor.
Two other potential swing votes, Turnbull says, Chief Justice John Roberts and Justice Brett Kavanagh, gave little indication of how they might rule. Other justices seemed to fall into their predictable camps, with Justices Sonia Sotomayor, Stephen Breyer, Kagan and Ginsburg appearing to display their liberal leanings in favor of the employees, while Justice Samuel Alito signaled an inclination to rule in favor of the employers.
Finding a humorous nugget within the argument transcripts, Paretti says he “would have paid good money to see Justice Alito’s face” when presented with Saturday Night Live’s androgynous character “Pat” as an example during the arguments. Justice Alito’s response: “I am not familiar with that.”
As noted, while the court is unlikely to issue a ruling until the first half of 2020, regardless of the outcome, the decision will not change many employers’ practices, Turnbull explains, adding that 21 states and the District of Columbia already have laws prohibiting discrimination based on sexual orientation and gender identity. Similarly, laws applying to federal contractors and subcontractors also protect those classes.
However, “a holding that gender identity and sexual orientation are not protected will leave some LGBTQ workers vulnerable to employment discrimination, especially in jurisdictions that do not provide any legal protections for those classes,” he says. Also, a ruling against the employees could become a “front-and-center” issue for the 2020 election, with Democrats vowing to amend Title VII if they take back the Oval Office.
Regardless of the state and federal landscapes for LGBTQ employment protections, Turnbull adds, an increasing number of employers are instating policies that protect such workers from discrimination “because they recognize it is good business and helps them recruit and retain top talent,” he adds.
The latest version of the Equality Act, which would mandate employment-discrimination protections based on sexual orientation and gender identity nationwide, was introduced earlier this year with support from a record number of businesses.