California’s LGBTQ+ Protections in Advance of the Supreme Court’s Decisions in Zarda, Bostock, and Harris

Category: Blog Posts
Date: Jan 14, 2020 11:32 AM

On October 8, 2019, the U.S. Supreme Court heard oral arguments in three cases: Altitude Express, Enc. v. Zarda (out of New York), Bostock v. Clayton County, Georgia (out of Georgia), and R.G. and G. R. Harris Funeral Homes v. EEOC (out of Michigan).  All three cases involve plaintiffs arguing that Title VII of the Civil Rights Act, which prohibits employment discrimination “because of . . . . sex,” includes protection against discrimination because of sexual orientation or gender identity.  Zarda and Bostock both involve men who were fired from their jobs after coming out as gay.  Harris involves a transgender woman who was fired after she informed her employer of her identification as female, when she was previously living as a man.

Zarda and Bostock, the two cases involving male employees that were fired after coming out as gay, were heard before the Supreme Court together.  The U.S. Court of Appeals for the Second Circuit in Zarda ruled that discrimination based on sexual orientation is protected by Title VII.  The U.S. Court of Appeals for the Eleventh Circuit in Bostock, on the other hand, had ruled that Title VII does not cover discrimination based on sexual orientation.

The transgender woman in Harris was allegedly fired after she announced in 2013 her intention to live as a woman and have sex-reassignment surgery to reflect her female identity.  Her employer testified that he fired her because she was “no longer going to represent himself as a man” which he believed would go against “God’s commands.”  The U.S. Court of Appeals for the Sixth Circuit reversed the district court’s ruling that Title VII does not apply to transgender employees.  The employer thereafter appealed to the U.S. Supreme Court.

At oral argument, in Zarda and Bostock, the plaintiffs argued that sexual orientation discrimination is on the basis of “sex” for purposes of Title VII protection because when an “employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”  The employer argued that “sex” and “sexual orientation” are separate and different characteristics, and that “sexual orientation by itself does not constitute discrimination because of sex under Title VII.”  The Trump Administration presented its views at oral argument as amicus curiae (third party or friend of the court) on behalf of the employer.  The Justices’ questioning in Zarda and Bostock focused on the role of Congress and what it understood “sex” to mean when enacting Title VII, as well as the effect on bathroom usage and sex-specific dress codes.

The Plaintiff in Harris argued that a transgender female employee was fired for contravening sex-specific expectations and stereotypes about how men and women should behave, and that the term “sex” as used in Title VII should be narrowly read to mean “sex assigned at birth.”  Taking a similar position to that of the employers in Zarda and Bostock, the employer argued that sex and transgender status are independent concepts,  and also advanced the notion that “sex-based differentiation is not the same as sex discrimination.”  In the Harris oral argument, the Trump Administration also argued as amicus curiae on behalf of the employer and pointed out that Justice Gorsuch commented that Harris was a “close textual case.”  The questioning from the Justices again revolved a lot around the implications of sex-specific bathroom usage and sex-specific dress codes.

The rulings in all three cases will likely be handed down in Summer 2020 at the latest.

In comparison to federal law, California law already provides significant protections for both the sexual orientation and gender identity or expression of LGBTQ+ employees.  The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment on the basis of sexual orientation, gender, gender identity, and gender expression.  Gender expression under FEHA is defined as a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”  FEHA accordingly protects both transgender and non-binary employees, as well as persons undergoing gender transition, from discrimination and retaliation.

The Supreme Court’s decisions in these three cases will likely not have a significant impact on California’s standing protections of LGBTQ+ employees.  Since 2012, California’s anti-discrimination laws expressly include a person’s sexual orientation, gender identity, and gender expression.   If the Supreme Court decides in these cases that Title VII’s prohibition on discrimination on the basis of “sex” does not include sexual orientation and/or gender identity, it will not affect protections provided by California’s FEHA or the interpretations of such protections.  Should the Court affirmatively decide that “sex” includes sexual orientation and/or gender identity, this will expand employees’ rights to sue in federal court.

As a refresher on FEHA’s protections for gender discrimination, remember that in California, it is an unlawful employment practice to do any of the following because of an employee’s sex, sexual orientation, gender identity, or gender expression:

  • Fail or refuse to hire
  • Discharge from employment
  • Discriminate in compensation, terms, conditions, or privileges of employment

Employers in California must allow employees to dress consistently with the employee’s gender identity and protect them from harassment and discrimination on that basis.  The Department of Fair Employment and Housing (DFEH) also advises employers that all employees have a right to a safe and appropriate restroom and locker room facility that corresponds to their gender identity, regardless of their assigned sex at birth.  For more information on DFEH guidance on transgender rights in the workplace, visit here.

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