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By: Bill Buechner
The United States Supreme Court heard oral arguments on Tuesday in three related and closely-watched Title VII cases. The question presented in the first two cases, which have been consolidated as Bostock v. Clayton County, ** is whether Title VII prohibits discrimination on the basis of sexual orientation. The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., presents a related but different question as to whether Title VII prohibits discrimination on the basis of gender identity. A transcript of the Bostock oral argument in these cases can be reviewed here. A transcript of the Harris oral argument can be reviewed here, and audio of the oral arguments will be available by the end of the week on the Supreme Court’s website.
In Bostock, counsel for the employees argued that discrimination based upon one’s sexual orientation is a subset of sex discrimination. In an attempt to illustrate this point, counsel for the employees repeatedly cited a hypothetical example of a male employee who dates a female and is not terminated and a female employee who dates a female and is terminated. Counsel for the employers argued that sex and sexual orientation are different concepts and that the hypothetical invoked by the employees does not necessarily demonstrate sex discrimination because it changes two variables: the employee’s sex and the employee’s sexual orientation. Counsel for the employers also pointed out that the Court has always required an employee asserting a claim for sex discrimination under Title VII to demonstrate that one sex is being treated more favorably than the other sex.
The oral argument reflected what appeared to be a sharply divided Court, with justices on the liberal wing of the Court appearing to be sympathetic to the employees’ argument that discrimination based upon sexual orientation should constitute sex discrimination under Title VII. On the other hand, justices on the conservative wing of the Court appeared to agree with the employers’ argument that discrimination based upon sexual orientation is separate and distinct from sex discrimination, that it therefore is not protected by Title VII, and that its addition falls within the purview of Congress and not the Court.
In response to questions by Justice Samuel Alito, counsel for the employees conceded that if a decisionmaker decides not to hire an applicant because of the applicant’s sexual orientation and does not know the applicant’s sex at the time of that decision, then there is no viable claim for sex discrimination. Counsel for the employees also conceded that sexual orientation and sex are different concepts. These responses arguably provide further support for the employers’ contention that a ruling in favor of the employees would in effect be a judicial amendment to Title VII.
Justice Neil Gorsuch, who is generally regarded as a conservative justice, asked counsel for the employers whether sex may be at least a motivating factor along with sexual orientation, when an employer makes a decision based on sexual orientation. Counsel for the employers responded that sex is not even a motivating factor in that scenario. Justice Gorsuch later asked counsel for the employee in the Harris case whether a decision of this magnitude should be made by the legislature and not by the courts. In response, counsel for the employee asserted that there has not been any upheaval with respect to lower court rulings in favor of transgendered employees.
The arguments in Harris substantially overlapped the arguments made in Bostock, with even more focus on bathroom usage and whether (for example) prohibiting a biological male who identifies as female from using the women’s restroom violates Title VII. Counsel for the employee, Aimee Stephens, argued that the funeral home terminated her for identifying as a woman only because she was assigned the male sex at birth and for failure to comply with stereotypes about how men and women should behave. Counsel for the funeral home responded that sex and transgender status are different concepts and that a ruling in favor of the employee would invalidate all sex-specific policies based on sex, such as bathroom usage, showers, overnight facilities and dress codes.
Jeffrey M. Harris of Consovoy McCarthy in Arlington, Va. presented oral argument in Bostock on behalf of Clayton County and Altitude Express, Inc. (the employer in the second sexual orientation case). Stanford University law school professor Pamela S. Karlan presented oral argument on behalf of the employees in Bostock (Gerald Bostock and the estate of Donald Zarda). David D. Cole of the American Civil Liberties Union presented oral argument in Harris on behalf of the employee (Stephens). John J. Bursch of Alliance Defending Freedom presented oral argument in Harris on behalf of the funeral home. In addition, the U.S. Solicitor General, Noel Francisco, participated in oral argument in support of the employers in all three cases.
We anticipate that the Court will issue its ruling by the end of June.
** FMG attorneys Jack Hancock, Bill Buechner and Michael Hill represented Clayton County.