Sexual orientation discrimination goes to Supreme Court second time

Wednesday, 17 April 2019

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Update on Bostock and Zarda: On June 15, 2020, the U.S. Supreme Court issued a decision involving the Bostick, Zarda, and Harris Funeral Homes cases. The court held that an employer who fires a person merely for being gay or transgender violates Title VII. The Harris Funeral Homes is discussed in an earlier blog post.

As you may recall, the last time we talked about sexual-orientation discrimination was when a decision by the U.S. Eleventh Circuit of Appeals had been appealed to the U.S. Supreme Court. That case was Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), in which the Eleventh Circuit indicated Title VII does not protect employees against sexual-orientation discrimination. Instead, the Eleventh Circuit ruled that Title VII protects employees against sexual-stereotyping discrimination. The Eleventh Circuit confirmed its decision en banc (where all the judges vote on the issue) on July 6, 2017.

The U.S. Supreme Court then denied the Evans’ request to be heard on appeal. Evans v. Georgia Regional Hospital, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017). For that reason, the Eleventh Circuit’s decision that Title VII doesn’t protect against sexual-orientation discrimination remains in place. Yet this is an issue that keeps cropping up—and may soon be decided once and for all by the U.S. Supreme Court.

Two cases appealed to Supreme Court, including one from Eleventh Circuit

At this time, two decisions about sexual-orientation discrimination have been appealed to the U.S. Supreme Court, one coming from the Eleventh Circuit. What’s really exciting for us employment lawyers is that both of the cases before the Supreme Court had different outcomes in the lower appellate courts. That means there is what’s called a “circuit split,” which makes it more likely the Supreme Court will make a decision based on the merits of the cases.

Let’s talk about the first case. About the same time that Evans was pursuing her case against Georgia Regional Hospital, another Georgia plaintiff was pursuing a similar case about sexual-orientation discrimination. Bostock v. Clayton County, 2016 WL 9753356 (N.D. Ga. Nov. 3, 2016) and 2017 WL 4456898 (N.D. Ga. July 21, 2017). Pointing to circuit precedent, the district court ruled that Title VII does not protect employees against sexual-orientation discrimination. The Eleventh Circuit affirmed the district court’s decision. 723 Fed. Appx. 964 (11th Cir. 2018) and denied a request for an en banc hearing (in which all the judges of the circuit participated). 894 F.3d 1335 (11th Cir. 2018). Bostock then appealed to the U.S. Supreme Court.

The second case comes from the U.S. Second Circuit Court of Appeals, which had originally ruled that Title VII does not protect employees against sexual-orientation discrimination (similar to the Eleventh Circuit). Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017). But the court didn’t stop there. When the Second Circuit heard the case en banc, the entire court found that Title VII does protect employees against sexual-orientation discrimination. 883 F.3d 100 (2d Cir. 2018). This ruling is in direct conflict with the ruling from the Eleventh Circuit. The defendant-employer then appealed the decision to the U.S. Supreme Court.

So now the Supreme Court has before it two cases with opposite outcomes. This divergence of outcomes usually causes the Supreme Court to give the appeal a full hearing with oral arguments. At this point, the Supreme Court is deciding whether to grant a writ a certiorari in both cases so a decision about a full hearing hasn’t been made yet. But the petitions for a full hearing in both cases were distributed to the justices last month (March 2019). This means we should be hearing whether the Supreme Court will give the case a full hearing sometime later this year.

A Note About Supreme Court Practice The U.S. Supreme Court handles appeals in a two-step process. The appealing party petitions the court for a writ of certiorari. If the court grants that writ, then the court will typically hear a full appeal with additional written briefs and oral arguments. After the full hearing, the court will either affirm the lower court’s decision or overrule the lower court’s decision. (There are other possibilities, but those are the most straightforward outcomes.) If the court denies a writ of certiorari, the lower court’s decision is affirmed and the litigation is over (at least for those aspects of the litigation appealed). From the 7,000 to 8,000 cases appealed each year, the Supreme Court typically grants a writ of certiorari in only 80 cases or so. This equates to roughly 1 percent of the cases appealed to the court—not typically great odds.

Description of the Bostock case

Not only do the two cases represent a circuit split, but the facts of the Bostock case appear to increase the chances of his appeal being heard by the Supreme Court.

Bostock is a gay male who worked for the Juvenile Court of Clayton County, Georgia, as a child welfare services coordinator and was given primary responsibility for the court-appointed special advocate (CASA) program. The CASA program finds advocates for children who are involved in cases before the juvenile court involving abuse, neglect, and exploitation, among other reasons. Most of the advocates are lay volunteers (typically not lawyers) from the community who advocate on behalf of the child in the court’s process.

During the over 10 years Bostock worked for the county, he received good performance evaluations, and the program he managed received accolades. As a result of Bostock’s leadership, the Clayton County CASA program was the first in the metropolitan Atlanta area to supply an advocate for every child in a county juvenile court system. The national CASA organization recognized Bostock’s contributions to CASA efforts, and he served on the National CASA Standards and Policy Committee in 2011 and 2012.

In January 2013, Bostock joined a gay recreational softball league in Atlanta and promoted his CASA program among members of the league in an effort to recruit more advocates for the program.

In April 2013, apparently after his participation in the softball league became known to other county personnel, Clayton County conducted an internal audit of the CASA program he managed. Bostock maintains he had done nothing wrong with the funds allotted to the program. During a May 2013 meeting of the CASA advisory board, at least one person made a disparaging comment about his sexual orientation and his participation in the gay softball league. In June 2013, Clayton County terminated his employment for conduct unbecoming of a county employee.

Bostock alleges that the unbecoming-conduct reason was a pretext for discrimination against him because of sex and sexual orientation.

Bottom-line observations

The U.S. Supreme Court is likely to rule on this issue later this year or early next year. The ruling will establish a nationwide policy about sexual-orientation discrimination—that Title VII does or does not protect employees against sexual-orientation discrimination, which will provide much-needed clarity in this area of the law. Stay tuned for the latest developments.
Even though the Eleventh Circuit has decided that Title VII does not protect local or state government employees or private-sector employees against sexual-orientation discrimination at this time, there is an executive order that bans this type of discrimination by federal contractors. The Office Federal Contract Compliance Programs (OFCCP) still enforces Presidential Executive Order 13672 (signed by President Barack Obama on July 21, 2014).
We expect the Supreme Court will rule that Title VII prohibits sexual-stereotyping discrimination. See our earlier discussion on the distinction between sexual-orientation discrimination and sexual-stereotyping discrimination.
It’s also important to remember that Title VII prohibits sexual harassment on the basis of sexual orientation.

While this issue is being decided by the highest court in the land, it is a good time to review hiring, training, promoting, and other employment-related policies to make sure they comply with Title VII and other laws. As we have mentioned before, mistakes in this arena are often costly.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.