Title VII of the Civil Rights Act of 1964 was passed during a divisive time in U.S. history. In the midst of the Civil Rights Movement, the rights of those who hadn’t had equal protection under the law was controversial. This is why its protections against employment discrimination on the basis of race, religion, color, national origin and sex had been a triumph. It was one of the first times, in the eyes of the law, that historically disadvantaged groups had an equal employment opportunity as anyone else. There was no part of one’s identity, as it relates to sex, national origin, color, or religious affiliation, that restrained one’s career and employment prospects. In spite of this, some employers still illegally discriminate against their employees. However, certain discriminatory motives have come to a head, as the Supreme Court must decide in Bostock v Clayton County, Georgia, whether the federal law protects LGBT employees.
On October 8, 2019, the Supreme Court began hearing arguments on the subject of whether or not Title VII protects against employers discriminating against an employee based on their LGBT identity. In Bostock, the plaintiff, Gerald Bostock, who was a child welfare service worker, alleges he was fired because his employer became aware of his membership in a gay softball league. He believes he was discriminated against because of his sexual orientation since, up until his termination, he had a history of positive performance reviews. The decision of this case rests in each judge’s interpretation of one particular protection of Title VII: sex. Sex discrimination is defined as “treating someone (an applicant or employee) unfavorably because of that person’s sex.” Sex discrimination has previously been interpreted by courts through the textual implications of the law, by ruling in favor of plaintiffs who were able to prove an employer exhibited discriminatory behavior because of their gender identity. Therefore, those against Title VII’s protections would find that the language of the law does not protect against discrimination based on one’s sexual orientation, but solely on their sex. At the same time, there have been other cases where the court has accepted that sex discrimination in employment extends to discrimination based on not fitting sex stereotypes. A notable case that upheld this interpretation of sex discrimination was Price Waterhouse v. Hopkins (1988), which ruled in favor of Hopkins, who claimed she was passed up for a promotion because her “aggressive” nature did not fit the “feminine” stereotype for female decorum.
In fact, the majority opinion for this case argues that, “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Consequently, cases such as Price Waterhouse recognize that there are significant stereotypes associated with sex and, therefore, Title VII protects against discrimination on the basis of such misalignment with those stereotypes.. Within the same line of reasoning, those that support Title VII’s protection against discrimination based on sexual orientation pose that discriminating against one’s sexual orientation is analogous with disseminating against one for not fitting certain sex stereotypes, since those in the LGBT community don’t align with traditional sex stereotypes. These traditional sex stereotypes relate to how certain sexes should behave and who they should be attracted to.
Additionally, other arguments that may be presented concern the inherent sex identity of a homosexual relationship. Since homosexuality is defined by having partners of the same sex in a relationship, if an employer discriminates against a homosexual employee, theoretically, their termination would be based on the sex of the employee. In other words, if an employee identifying as male is in a relationship with another male and an employer discriminates against them, they are discriminating based on the sex. This is because the employee identifies as male; if they were in a heterosexual relationship and the employee identified as female, he wouldn’t be discriminated against.
Whether the justices decide to decipher the federal law from a textual standpoint, “….on the basis of sex,” or take into consideration how the role that sex identity and stereotypes play into discrimination based on sexual orientation, will determine the ruling of the court. In particular, where the justices predominantly align in judicial philosophy, will most likely dictate what the decision of the Court will be. A more conservative leaning justice would be more likely decipher the law as it is written and interpret the law textually. Whereas, a liberal-leaning justice will more likely see laws as evolving in today’s context and rule in favor of Bostock. However, this decision most likely won’t be released until sometime in May or June, and depending on how the Justices’ ruling, could either open more legal avenues to help extend other LGBT rights or continue the status quo.
If the Supreme Court chooses to accept that Title VII protects against discrimination on the basis of sexual orientation, its decision could conflict with future readings of the federal statute. Another aspect of the federal statute that protects against employment discrimination is based on religion. If the Supreme Court affirms that sexual orientation discrimination is sex discrimination, the Court would have to face future cases where religion and sex could conflict. This could come from those who may attribute their intolerance to homosexuality to their religious practices.
Religious exemptions for discrimination based on race, color and national origin would largely be shot down by the lower courts’ decision in Newman v. Piggie Park. In this case, the plaintiff, Anne Newman was refused service at the restaurant Piggie Park, due to the restaurant owner’s belief that the Civil Rights Act “contravenes the will of God” and that his “religious beliefs compel him to oppose any integration of the races whatsoever.” For that reason, Newman, as a black woman receiving the same service amongst white customers, would be going against his religious beliefs. The Court of Appeals ruled in favor of Newman, stating that she had, in fact been discriminated against and the owner’s religious beliefs did not exempt him from being found guilty.
Therefore, the only piece of the federal statute that hasn’t been decided is whether there would religious exemptions for discrimination “on the basis of sex,” which would include sexual orientation if the case is seen favorably by the Supreme Court. However, how this decision relates to the context of sexual orientation employment discrimination would have a different approach. Under the First Amendment, an employer of a religious organization is free to conduct its affairs under their right to free exercise. Although, if the Court rules that it is illegal to discriminate against someone’s sexual orientation, it raises the question of whether the employer can discriminate on the basis of sex under this newly developed interpretation of sex in Title VII. In that case, the Supreme Court would see two aspects of Title VII’s employment discrimination stipulations as being at odds with one another. Therefore, the Court would need to ultimately decide what federal law prioritizes more, religion or sex discrimination.
This question has been avoided or not definitively answered yet by the Supreme Court as it hasn’t answered to which extent, if there are any, can religious exemptions be used to discriminate against someone based on their sexual orientation. The Supreme Court decision has the propensity to redefine conventional understandings of sex under the law as well as reshape legislation to respond to it. It would also further uphold the legality of same-sex couples and marriage established by Obergefell v. Hodges, inciting an additional triumph for civil rights similar to the one 55 years ago.