There are currently two petitions for a writ of certiorari[2] posing this question before the high court—one from an employer accused of discrimination, [3] and one from a worker alleging that he was discriminated against.[4] Both petitions invite the Supreme Court to issue a final ruling on the question of whether Title VII prevents discrimination in the workplace on the basis of sexual orientation. The Supreme Court’s decision to take up the issue could resolve a split among the Circuit Courts—with the United States Court of Appeals for the Second and Seventh Circuits maintaining that sexual orientation discrimination is illegal under federal law, and the United States Court of Appeals for the Eleventh Circuit holding that discrimination based on sexual orientation is not prohibited by federal law.[5]
The Supreme Court’s potential decision on this question is critically important. While some states and municipalities have state or local laws that protect workers based on their sexual orientation, many states do not.[6] As such, for countless workers who are not afforded the protection of state or local discrimination laws, the Supreme Court’s decision will be determinative of whether those individuals can be legally discriminated against in their jobs solely because of their sexual orientation.
One petition filed in May 2018 by attorneys for the employer accused of discrimination, Altitude Express Inc., asked the Supreme Court to overturn the Second Circuit’s en banc decision in Zarda v. Altitude Express.[7] The Zarda case ensued when Donald Zarda filed a charge of discrimination on the basis of gender and sexual orientation with the Equal Employment Opportunities Commission, alleging that he had been terminated from his job as a skydiving instructor because a customer complained about his sexual orientation.[8] In February 2018, the Second Circuit joined the Seventh Circuit when it held in Zarda that the prohibition in Title VII against employment discrimination “because of . . . sex” does encompass discrimination based on an individual’s sexual orientation.[9] Attorneys for Altitude Express Inc. are now asking the Supreme Court to overturn that ruling.[10] The Altitude Express attorneys maintain that the Second Circuit erred in its interpretation of Title VII, essentially accusing the Court of improperly stepping into the role of the legislature:
At its core, this is a case of statutory construction. Although, to be sure, it is emblematic of the zeitgeist in American conscience and law respecting gender and sex. It demonstrates, inter alia, America’s ever evolving attitudes toward the civil rights of gay, lesbian, and bisexual individuals.
. . .
Laudable as the ends may be, the means deployed by the Second Circuit nonetheless circumvent the immutable legislative process by which we remain bound to govern . . . As citizens and a nation, we can strive for the level of inclusion reached by the Second Circuit. However, this cannot be achieved at the expense of compromising our democratic process.[11]
The second petition, which poses the same question as the Zarda case, has been filed from the side of the aggrieved employee, who is asking the Supreme Court to overturn the Eleventh Circuit’s decision in Bostock v. Clayton County Board. of Commissioners.[12] In Bostock, Gerald Lynn Bostock, a gay man, asserted that he was fired from his job as a Child Welfare Services Coordinator at the Clayton County Juvenile System in Georgia because of his sexual orientation.[13] The Eleventh Circuit dismissed his claim, holding that Title VII does not cover claims of discrimination based on sexual orientation, and reaffirmed its prior holding that “‘discharge for homosexuality is not prohibited by Title VII.’”[14]In so holding, the Eleventh Circuit cited its decision last year in Evans v. Georgia Regional Hospital, where it found that a woman who alleged that she had been terminated from a Georgia hospital because she is a lesbian did not have a discrimination claim under Title VII because that law does not encompass discrimination based on sexual orientation.[15]
Whether the Supreme Court will take up the issue remains unknown. Significantly, only months ago in December 2017, the Supreme Court declined, without comment, to hear the appeal of the Eleventh Circuit’s decision in Evans, which would have resolved this exact issue.[16] A negative outcome from the Supreme Court on this issue—a finding that Title VII does not encompass discrimination on the basis of sexual orientation—risks leaving countless individuals with no recourse at all for suffering discrimination in their employment on the basis of their sexual orientation. Particularly in light of LGBTQ Pride Month, this question now pending before the Supreme Court serves as a poignant reminder of the important work that remains to be done in the fight for equality.
[1] Aurora Branes, SCOTUS BLOG, Petitions of the Day (June 15, 2018, 6:00 pm), http://www.scotusblog.com/2018/06/petition-of-the-day-1403/.
[2] A “Writ of Certiorari” is a document in which a party asks the Supreme Court to review the decision of a lower court.
[3] Petition for Writ of Certiorari, Altitude Express Inc., et al., v. Melissa Zarda, et al., (May 29, 2018), https://www.supremecourt.gov/DocketPDF/17/17-1623/48453/20180529115805218_Altitude%20Express%20Petition.pdf.
[4] Petition for Writ of Certiorari, Gerald Lynn Bostock v. Clayton County, Georgia, https://www.supremecourt.gov/DocketPDF/17/17-1618/48357/20180525170054025_36418%20pdf%20Sutherland%20br.pdf.
[5] Bostock v. Clayton Cty. Bd. of Comm’rs, 2018 U.S. App. LEXIS 12405, at *2 (11th Cir. 2018) (citing Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017), cert. denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017)); Zarda v. Altitude Express, Inc., 883 F.3d 100, 111-15 (2d Cir. 2018); Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 340-41 (7th Cir. 2017).
[6] Movement Advancement Project, Equality Maps, Non-Discrimination Laws, Employment (accessed June 25, 2018), http://www.lgbtmap.org/equality-maps/non_discrimination_laws.
[7] Petition for Writ of Certiorari, Altitude Express Inc., et al., v. Melissa Zarda, et al., (May 29, 2018), https://www.supremecourt.gov/DocketPDF/17/17-1623/48453/20180529115805218_Altitude%20Express%20Petition.pdf.
[9] Id. at 108.
[10] Petition for Writ of Certiorari, Altitude Express Inc., et al., v. Melissa Zarda, et al., (May 29, 2018), https://www.supremecourt.gov/DocketPDF/17/17-1623/48453/20180529115805218_Altitude%20Express%20Petition.pdf.
[11] Id.
[12] Bostock, 2018 U.S. App. LEXIS 12405, at *1-2; see also Petition for Writ of Certiorari, Gerald Lynn Bostock v. Clayton County, Georgia, https://www.supremecourt.gov/DocketPDF/17/17-1618/48357/20180525170054025_36418%20pdf%20Sutherland%20br.pdf.
[13] Petition for Writ of Certiorari, Gerald Lynn Bostock v. Clayton County, Georgia, https://www.supremecourt.gov/DocketPDF/17/17-1618/48357/20180525170054025_36418%20pdf%20Sutherland%20br.pdf.
[14] Bostock, 2018 U.S. App. LEXIS 12405 at *2 (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)).
[15] Bostock, 2018 U.S. App. LEXIS 12405 at *2 (citing Evans, 850 F.3d at 1256).
[16] Evans, 199 L. Ed. 2d at 447; see also Adam Liptak, Supreme Court Won’t Hear Case on Bias Against Workers (N.Y. Times) (accessed June 25, 2018), https://www.nytimes.com/2017/12/11/us/politics/supreme-court-gay-workers-bias-case.html.