Can Someone Be Fired For Being Gay? Arguments on The Court Without The Old Guard

By Adam Liptak

New York Times

ATLANTA —

 The Supreme Court has delivered a remarkable series of victories to the gay rights movement over the last two decades, culminating in a ruling that established a constitutional right to same-sex marriage. But in more than half the states, someone can still be fired for being gay.

Early in its new term, on Oct. 8, the court will consider whether an existing federal law, Title VII of the Civil Rights Act of 1964, guarantees nationwide protection from workplace discrimination to gay and transgender people, even in states that offer no protections right now.

It will be the court’s first case on L.G.B.T. rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay-rights decisions. And without Justice Kennedy, who joined four liberals in the 5-to-4 ruling in the marriage case, the workers who sued their employers in the three cases before the court may face an uphill fight.

“Now that we don’t have Kennedy on the court, it would be a stretch to find a fifth vote in favor of any of these claims that are coming to the court,” said Katherine Franke, a law professor at Columbia and the author of “Wedlocked: The Perils of Marriage Equality.”  

She added that lawyers working to expand gay rights might have focused too narrowly on the right to marry. “The gay rights movement became the marriage rights movement,” she said, “and we lost sight of the larger dynamics and structures of homophobia.”

Other experts said the court should have little trouble ruling for the plaintiffs.

“Lesbian, gay, bisexual and transgender Americans continue to face widespread job discrimination because of their same-sex attraction or sex identities,” said William N. Eskridge Jr., a law professor at Yale and the author of an article in The Yale Law Journal on Title VII’s statutory history. “If the justices take seriously the text of Title VII and their own precedents, L.G.B.T. Americans will enjoy the same job protections as other groups.”

The Supreme Court’s earlier gay rights rulings were grounded in constitutional law. Romer v. Evans, in 1996, struck down a Colorado constitutional amendment that had banned laws protecting gay men and lesbians. Lawrence v. Texas, in 2003, struck down laws making gay sex a crime. United States v. Windsor, in 2013, overturned a ban on federal benefits for married same-sex couples.

And Obergefell v. Hodges, in 2015, struck down state bans on same-sex marriage, ruling that the Constitution guarantees a right to such unions.

The new cases, by contrast, concern statutory interpretation, not constitutional law.

The question for the justices is whether the landmark 1964 law’s prohibition of sex discrimination encompasses discrimination based on sexual orientation or gender identity. Lawyers for the gay and transgender plaintiffs say it does. Lawyers for the defendants and the Trump administration, which has filed briefs supporting the employers, say it does not. 

The common understanding of sex discrimination in 1964 was bias against women or men, Solicitor General Noel J. Francisco wrote. It did not encompass discrimination based on sexual orientation and gender identity.

“The ordinary meaning of ‘sex’ is biologically male or female,” he wrote. “It does not include sexual orientation.”

image with the retirement of Justice Anthony M. Kennedy, who wrote the majority opinion in all four of the Supreme Court’s major gay-rights decisions, gay rights advocates may face an uphill battle at the court.

[With the retirement of Justice Anthony M. Kennedy, who wrote the majority opinion in all four of the Supreme Court’s major gay-rights decisions, gay rights advocates may face an uphill battle at the court.CreditAl Drago/The New York Times]

In response, lawyers for one of the plaintiffs, Gerald Bostock, wrote that “a person’s sexual orientation is a sex-based classification because it cannot be defined without reference to his sex.”

Mr. Bostock, who spent a decade building a government program to help neglected and abused children in Clayton County, Ga., just south of Atlanta, said his story illustrated the gaps in protection for gay workers.

“Everything was going amazingly,” he said in an interview in his home. “Then I decided to join a gay recreational softball league.”

He played catcher and first base for his team, the Honey Badgers, in the Hotlanta Softball League. A few months later, the county fired him for “conduct unbecoming a county employee.” 

Mr. Bostock’s case is at an early stage, and the reason for his dismissal is contested. His former employer has said it fired him after an audit indicated he had misused county funds, which Mr. Bostock denies.

In an email, Jack R. Hancock, a lawyer for the county, said, “Mr. Bostock’s sexual orientation had nothing to do with his termination.”

The justices will decide whether Mr. Bostock is entitled to try to make his case to a jury. The county insists that Title VII allows it to fire workers for being gay, meaning that the case should be dismissed at the outset.

“When Congress prohibited sex discrimination in employment approximately 55 years ago,” Mr. Hancock wrote in a brief, “it did not simultaneously prohibit discrimination on the basis of sexual orientation.”

Mr. Bostock, 55, grew up in southern Georgia, where he said he “learned the three F’s very quickly: family, faith and football.” But he found his own calling, he said, when he was assigned to recruit volunteers to represent children from troubled homes in juvenile court.

“It was my passion,” he said. “My employer loved the job I was doing. I got favorable performance reviews. We had great success.”

Things took a turn, he said, when he became more open about his sexual orientation.

“When I joined the gay softball league in January of 2013, that’s when my life changed,” he said. “Within months of that, there were negative comments about my sexual orientation.” In particular, he said, he was criticized for recruiting volunteers for the program from the gay community in Atlanta. 

Mr. Bostock said he would attend the Supreme Court arguments in his case, Bostock v. Clayton County, No. 17-1618. “I hope they give me the right to have my day in court, to come back to Georgia and clear my name and have the truth come out,” he said. 

James Obergefell, center, the plaintiff in the same-sex marriage case Obergefell v. Hodges that resulted in a constitutional right to same-sex marriage, leaving the Supreme Court after the ruling in 2015.CreditDoug Mills/The New York Times

The justices will also hear a companion case, Altitude Express v. Zarda, No. 17-1623. It was brought by a skydiving instructor, Donald Zarda, who said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”

Mr. Zarda sued under Title VII and lost the initial rounds. He died in a 2014 skydiving accident, and his estate pursued his case. His lawyers told the justices that the case could be decided “without ever using the term ‘sexual orientation’ or ‘gay.’”

“The claim could accurately be framed entirely in terms of sex and nothing else: Zarda was fired for being a man attracted to men,” they wrote. “That is sex discrimination pure and simple.”

Most federal appeals courts have interpreted Title VII to exclude sexual orientation discrimination. But two of them, in New York and Chicago, have ruled that discrimination against gay men and lesbians is a form of sex discrimination.

Last year, a divided 13-judge panel of the United States Court of Appeals for the Second Circuit, in New York, allowed Mr. Zarda’s lawsuit to proceed. Writing for the majority, Chief Judge Robert A. Katzmann concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” 

Mr. Hancock, in his brief for Clayton County in Mr. Bostock’s case, urged the justices to be wary of what he called a novel interpretation of an old law. “One would expect that, if Congress intended to enact a statute of such magnitude — socially, culturally, politically and policy-wise — as one prohibiting employment discrimination on the basis of sexual orientation,” he wrote, “Congress specifically would have so stated in the text of Title VII.”

The Supreme Court has ruled that it is race discrimination to fire a worker for being a member of an interracial couple. Lawyers for Mr. Zarda said the same principle should apply to same-sex couples.

“Just as firing a white employee for being married to an African-American person constitutes discrimination because of race,” they wrote, “so firing a male employee for being married to another man constitutes sex discrimination.”

Mr. Francisco, in his brief for the administration, wrote that the analogy did not hold.

“An employer who refuses to hire an applicant in an interracial relationship would rightly be branded a racist,” he wrote. “But no ordinary speaker of English would call an employer who refuses to hire an applicant in a same-sex relationship a sexist.”

At the bottom, the cases may turn on whether the justices focus on the words of the statute or their sense of what the lawmakers who voted for it in 1964 understood they were doing. In a 1998 decision in a Title VII case, Justice Antonin Scalia wrote that it was the words that matter.

“Statutory prohibitions,” he wrote, “often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

If nothing else, Professor Franke said, the cases will explore divisive and difficult issues. “Sex,” she said, “is a confounding term in our culture, in our language and certainly in the law.”

by Adam Liptak on Twitter: @adamliptak.