Students Speak: Civil Rights for all? LGBTQ employees’ continued struggles for equality and the Moral Revitalization Theory

To celebrate our first 50 years at The Santa Barbara & Ventura Colleges of Law, we’ve asked our students to revisit historical and noteworthy cases. 

Part one of this series provided historical context as to why Title VII of the Civil Rights Act of 1964 must be amended to include sexual orientation and gender identity in the definition of “sex.” After outlining 50 years of government abuse, societal phobias, and marginalization in the struggles for LGBTQ equal employment protections, we move on to see where history has brought us in 2019.

Part two of this series discusses the Equality Act, three LGBTQ Title VII cases before the Supreme Court in 2019, and how the Supreme Court may amend Title VII.

Current LGBTQ employment protections and the Equality Act

Title VII’s unlawful employment practices include discrimination of employees “because of . . . race, color, religion, sex, or national origin.” Title VII as written does not provide nationwide protections from employers’ discriminatory actions and beliefs on how LGBTQ employees should behave, should dress, and who they should love.

According to the Human Rights Campaign, two-thirds of self-identified LGBTQ Americans have experienced sex discrimination. As of June 2019, only 21 states and D.C. include both sexual orientation and gender identity Title VII protections in some public and private sector workplaces.

Inconsistent LGBTQ employment protections represent a chasm of viewpoints in America. In an effort to create cohesion, the Equality Act was drafted.

If the Equality Act became law, it would add sexual orientation and gender identity into sections of the Civil Rights Act of 1964 and the Government Employee Rights Act of 1991.

On May 17, 2019, the Equality Act passed the Democrat Majority House of Representatives. This is the first time a bill protecting LGBTQ rights passed a chamber of Congress. It is not expected to pass the Republican Majority Senate or be signed into law by the president.

Opponents of the Equality Act misconstrue the purpose and application of the bill’s proposed amendments. For example, they believe that including “gender identity” in the definition of “sex” violates women’s well-being and erases women’s protections. In actuality, the Equality Act expands women’s rights by making it illegal for public or federally funded businesses to discriminate against women based on “sex.”

Supporters of the Equality Act understand the exigency to provide LGBTQ people with clear and comprehensive protections. Supporters include more than 500 religious, medical, and social justice organizations, 200 major corporations, and seven in 10 Americans.

Jerold Nadler, Chairman of the Judicial House Committee, summarizes the Equality Act’s importance: “We are breaking years of silence from Congress to hear and understand the invidious discrimination that LGBTQ people have suffered, and advance critical legislation to provide them the same protections as other vulnerable communities and to strengthen protections for other marginalized groups.”

The U.S. Supreme Court agreed to review three LGBTQ cases to clarify the scope of “sex”

In 2019, the U.S. Supreme Court agreed to review three LGBTQ Title VII cases to clarify the scope of “sex” because the Circuit Courts of Appeals are split on whether Title VII includes sexual orientation and gender identity.

In the 2018 Altitude Express v. The Estate of Donald Zarda case, the Second Circuit held that sexual orientation discrimination is a subset of sex discrimination. Donald Zarda filed a Title VII claim when he was fired after mentioning his sexual orientation to a female client. The court followed the 2015 case, Baldwin v. Foxx, where Title VII’s “sex” is inescapably linked to an employer treating an employee differently based on sexual orientation or non-conformity to heterosexual gender norms.

Also in 2018, in Bostock v. Clayton County Board of Commissioners, the Eleventh Circuit determined that Title VII does not include protections from sexual orientation discrimination. The court relied on the 1979 Blum v. Gulf Oil Corp. case, where Title VII allowed “discharge for homosexuality.” Two Eleventh Circuit justices dissented that Bostock should have been decided based on the 2017 Hively v. Ivy Tech Community College holding where it is impossible to discriminate based on sexual orientation without it being based on “sex.”

In 2019, the Zarda and Bostock cases will be consolidated into a one-hour Supreme Court hearing to determine if “sex” includes sexual orientation.

The 2018 E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., case is the most controversial Title VII suit before the Supreme Court in 2019. Aimee Stephens informed her employer, Thomas Rost (owner of the funeral home), that she planned to transition from a man to a woman and wear women’s clothing at work. Rost fired her “because Stephens was ‘no longer going to represent himself as a man.’” The Sixth Circuit relied on Price Waterhouse v. Hopkins and Hively to conclude that the funeral home engaged in Title VII impermissible sex stereotyping when Stephens failed to conform to Rost’s notions of male behavior.

In 2020, instead of answering the funeral home’s questions, the Supreme Court will answer their own reworded question: “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender OR (2) sex stereotyping under Price Waterhouse v. Hopkins.”

Narrow views of Title VII and Judge Posner’s Moral Revitalization Theory

LGBTQ employees face many struggles ahead. After Congress’ almost certain vote against the Equality Act, the scope of “sex” will be decided by the same conservative majority Supreme Court justices that upheld President Trump’s ban on transgender people in the military.

Additionally, the Department of Justice (DOJ) interprets the scope of “sex” as protecting “biological” women and men from unequal workplace policies that disadvantage all women or all men only. If the Supreme Court adopts the DOJ’s narrow definition of “sex,” decades of precedent could be undone and invalidate future Title VII claims of sexual harassment, sex stereotyping, etc.

In the funeral home case, the DOJ excludes transgender status in the scope of “sex” and argues: “[Title VII] simply does not speak to discrimination because of an individual’s gender identity.” Some legal journalists theorize that the Supreme Court reworded the funeral home’s original questions to avoid overruling Price Waterhouse v. Hopkins. If the DOJ’s argument is focused on excluding “gender identity” and transgender status but not Price Waterhouse’s sex stereotyping, years of precedent may not be undone. Under this theory, LGBTQ employees may still win Title VII claims under sex stereotyping.

The Supreme Court may interpret Title VII another way. Judge Richard Posner believes that judges have moral obligations to analyze the applicability of old statutes to reflect societal advancements, even if new interpretations conflict with original meanings or legislative intent.

Through Judge Posner’s Moral Revitalization Theory, three steps determine if courts should freshly interpret statutes:

1. Ripe for Revitalization: Judges should analyze how the statute was passed and its interpretation throughout history. Title VII has clearly evolved over 55 years from preventing traditional notions of workplace “sex” discrimination to mean sexual harassment, sex stereotyping, etc. Judges should also ask how society views the affected group. Polls indicate that most Americans accept and support LGBTQ people. Therefore, Title VII is ripe for revitalization.
2. Super-statutes: The Moral Revitalization Theory applies to super-statutes only. Title VII is considered a super-statute because it created new employment discrimination protections and the statute “stuck” with the public culture. It broadly affected the law by providing protections to certain classes of people and was enacted after a long debate on a “vexing social or economic problem” (ongoing discrimination of certain classes of people).
3. Textual Ambiguities: statutes with textual ambiguities are candidates for the Moral Revitalization Theory. Here, Title VII’s vague word “sex” requires clarification.

Title VII meets Judge Posner’s three requirements for amendment to include sexual orientation and gender identity.

Posner’s Moral Revitalization Theory of statutory interpretation is debated by textualists and critics that believe justices must defer to the legislative and executive branches. However, through the separation of powers, the Supreme Court has the power to ensure Title VII is constitutional, despite Congress’ likely vote against the Equality Act and the DOJ’s narrow interpretation of “sex.” In limited circumstances, judges must be guided by moral obligations to consider societal changes.

At this time in history it is doubtful the Supreme Court justices will apply Judge Posner’s theory and interpret “sex” broadly, despite moral obligations to prevent invidious LGBTQ workplace discrimination.

Conclusion

In 1969, the Stonewall riots propelled LGBTQ people to stand and fight against society’s abuses.

Through executions, criminalization, ostracism, oppression, societal bias, phobias, religious persecution, assassinations, lack of human dignities and legal protections, LGBTQ Americans have struggled for basic human rights. The same rights all Americans must have in the constitutional guarantee of equality under the law.

Title VII should be reviewed through a new lens that focuses on society’s acceptance of the LGBTQ community as ordinary people that work, play, and love. Tolerating an employee’s sexual orientation or gender identity is different than endorsing it. Even if the Equality Act is not passed in its current form, someday legislation similar to the Equality Act will be passed by both chambers of Congress, a president will sign it into law, and finally LGBTQ people will be part of civil rights for all.

ABOUT THE AUTHOR:

Aside from attending law school and working in the legal profession, Stephanie Sivers has been a professional musician and performer most of her life. Her belief that all Americans deserve equal rights, inspired her to write about LGBTQ employment rights under Title VII.

For more information about the author: www.linkedin.com/in/SKSiversJD

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