“The Supreme Court now will decide once and for all whether the sex discrimination prohibitions of the Civil Rights Act include discrimination based on sexual orientation.”
(New York, NY, January 4, 2019) —The U.S. Supreme Court today announced it will review Altitude Express v. Zarda, a case in which the U.S. Court of Appeals for the Second Circuit ruled that discrimination on the basis of sexual orientation violates the Civil Rights Act of 1964, the federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. Lambda Legal filed a friend-of-the-court brief and argued the case, before the full Second Circuit in September 2017. The Second Circuit ruled in February in favor of the estate of the late Donald Zarda, a New York skydiving instructor who was fired from his job because he was gay.. Lawyers for Altitude Express then petitioned the Supreme Court for a writ of certiorari, which the Court granted today.
Altitude Express v. Zarda is one of three LGBT employment discrimination cases the Court has decided to hear. The other two are: R.G. & G.R. Harris Funeral Homes v. EEOC, a Michigan case brought by the ACLU and ACLU of Michigan where the U.S. Court of Appeals for the Sixth Circuit ruled in favor of a transgender woman fired from her job as a funeral director when she informed her boss she intended to transition; and Bostock v. Clayton County, where the U.S. Court of Appeals for the Eleventh Circuit ruled against a Clayton County, Georgia, child welfare services coordinator fired when his employer discovered he was gay. Lambda Legal filed friend-of-the-court briefs in the New York and Michigan cases.
“We now have circuit courts with competing rulings on whether or not Title VII of the Civil Rights Act covers terminations that take an employee’s sexual orientation into account,” said Greg Nevins, Senior Counsel and Workplace Fairness Program Strategist for Lambda Legal. “Now, the Supreme Court will decide once and for all whether the sex discrimination prohibitions of the Civil Rights Act include discrimination based on sexual orientation. Title VII obviously requires equal treatment of men and women, so it was wrong to treat Donald Zarda [or Gerald Bostock] differently because of his attraction to men, when a Donna Zarda or Geraldine Bostock would not have endured discrimination for liking men. We look forward to the Court’s consideration of that argument – one that Lambda Legal has been making successfully in the lower courts for years.”
The Court’s action today was in response to sharply different treatment of the issue in the last few years. Three circuits have been asked to convene en banc {meaning all active judges, not just a three-judge panel) to consider overruling old precedent against LGBT employees. The Second Circuit agreed to do so, as did the U.S. Court of Appeals for the Seventh Circuit, where the entire court ruled in April 2017 in favor of Kim Hively, an Indiana community college math teacher fired for being a lesbian, in a case also argued by Lambda Legal. By contrast, the Eleventh Circuit twice has refused recent petitions to convene en banc to reconsider old precedent, one in the case of Lambda Legal client Jameka Evans, and the other time in the Bostock case.
“Momentum is still on our side,” Nevins added. “Federal courts recently have focused on the right question – whether attraction to men is held against men, but not women — and asking the right question has led to the right answer. The favorable legal rulings are catching up with the public’s opinion that LGBT people have a right, just like everyone else, to live and work with dignity and free of discrimination. We are dedicated to seeing this fight through to the end, when all LGBT people have the same right as everyone else to be their whole selves at work.”
Lambda Legal’s involvement in these cases, as well as Horton v. Midwest Geriatric Management in the Eighth Circuit and Evans v. Georgia Regional Hospital in the Eleventh Circuit, and multiple cases advocating on behalf of people living with HIV denied employment or promotion (Harrison v. Mattis, Doe & Voe v. Mattis and Pierce v. Ackal) is a part of a national effort to establish and enforce employment discrimination protection for all LGBT people and everyone living with HIV. These efforts include an historic win for transgender workplace rights in Glenn v. Brumby and the current lawsuit Karnoski v. Trump challenging the ban on transgender troops. Lambda Legal also launched Out at Work, a campaign to support Jameka Evans in her pursuit for justice, bring awareness to LGBT people everywhere of their Title VII rights, and assert that all people have the right to a job with dignity, free from repercussions for who they are or whom they love.
More information about Lambda Legal’s work on employment protections is available here: http://www.lambdalegal.org/issues/employment-and-rights-in-the-workplace