By Mark Carey
Sexual Orientation discrimination is being argued today before the United States Supreme Court in the combined cases of Bostock v. Clayton County George and Altitude Express, Inc. v. Zarda. The Court is also holding argument in a similar transgender discrimination case of Harris Funeral Homes, Inc. v. EEOC. The trio of cases are as important as the same sex marriage equality issue ratified by the Court in Obergefell v. Hodges. These cases are history in the making and I predict the Court will hold that sexual orientation discrimination and discrimination based on transgender status constitute sex discrimination under Title VII of the 1964 Civil Rights Act because adverse employment decisions discriminating against the LGBTQ community are being made “because of sex” of the employee.
The controversy around the cases has more to do with “perceived politics” infecting the bench than whether sexual orientation discrimination falls within current federal law “because of sex”, which it does. Although the Court’s majority now leans to the conservative side, the Court cannot ignore prior precedent written by Justice Scalia in Oncale v. Sundowner Offshore Services. In Oncale, the Court held,
“Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct com-parative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex.’”
The Court does record oral arguments and posts them to the Court’s website at the end of each argument week. I encourage you to listen to the case, especially because the Trump Administration is arguing that Title VII does not cover sexual orientation discrimination, even though the U.S. EEOC has ruled that it does fall within the statute.
If you would like more information about sexual orientation discrimination and transgender discrimination, please contact employment attorney Mark Carey at 203-255-4150 or firstname.lastname@example.org.