Why the Next Supreme Court Nomination Is Important for Employment Law

Supreme CourtThe 2018 Supreme Court spring rulings were undeniably victorious for employers. Epic Systems Corp. v. Lewis ruled that workers have to abide by arbitration agreements, and that such provisions do not violate the collective bargain rights of the National Labor Relations Act.  A second, Janus v. AFSCME, ruled that public-sector unions cannot require fair share fees from workers who do not wish to join the union.  The impact of these decisions has been significant for public- and private-sector employers, nationwide.

And there’s more to come. The 2019-2020 term will present the Justices with a new slate of cases involving issues with broad impact on labor and employment law. Some that could be heard revolve around sexual orientation or gender identity, and how these relate to sexual discrimination. Two cases, Altitude Express Inc. et al. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC, will hopefully provide clarity to what—if any—coverage Title VII of the Civil Rights Act of 1964 provides to employees raising allegations of sexual orientation and gender identity discrimination.

Title VII of the Civil Rights Act of 1964 provides that:

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

The Altitude and Harris cases concern two individuals who believe that they suffered adverse employment action as a result of their sexual orientation or gender identity. While sexual orientation is not specifically identified in the list of characteristics protected by Title VII, many Courts have held that discrimination on the basis of someone’s status as gay, straight, or bisexual is a form of sex stereotyping that is prohibited.  The Altitude case provides an example:  Donald Zarda, who is now deceased, sued his employer, alleging that he was terminated for telling a client that he was gay. The Second Circuit ruled in his favor, saying that Title VII extended to sexual orientation. Altitude Express has appealed the Second Circuit’s decision to the Supreme Court.

The courts are more divided on matters of gender orientation, that is, discrimination based on an individual’s identity as transgender. The matter of R.G. & G.R. Harris Funeral Homes v. EEOC concerns an employer’s decision to fire one of its employees who was transitioning from male to female.  More specifically, Aimee Stephens was terminated from her position as funeral director after requesting that she be allowed to wear a woman’s uniform. The employer cited the Religious Freedom Restoration Act as the basis for their termination of Ms. Stephens. While a lower court affirmed this defense, the Sixth Circuit unanimously overturned this decision, stating that employing Ms. Stephens—and permitting her to express her gender identity—did not substantially burden the religious practice of the Funeral Home’s owner. And even if it did, adhering to Title VII was the “least restrictive” means to eliminate sex discrimination. The Funeral Home is now appealing this decision to the Supreme Court.

If the Supreme Court elects to grant certiorari and hear either of these appeals, the outcome has the potential to change employment law decisions for generations to come. Justice Kennedy, who wrote the landmark decision in Obergefell v. Hodges, was seen as an ally of the LGBT+ community. His retirement throws the future of these cases into jeopardy at a pivotal moment for the Supreme Court.