The U.S. Supreme Court will decide if the Civil Rights Act of 1964 includes protection from workplace discrimination for people based on their sexual orientation or gender identity.
In October, the court hears arguments on three cases that address this issue: R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission; Altitude Express Inc. v. Zarda; and Bostock v. Clayton County, Georgia.
The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, sex, or national origin, but does not specifically address sexual orientation or gender identity. Decisions made by lower courts over the years interpreting the issue have been inconsistent. Similar cases are currently awaiting judgement in five appellate courts.
“For a long time, sexual orientation was not considered to have a viable separate claim and there were some novel legal arguments that had been made in the last few years which have taken off, which have accelerated this idea that sexual orientation might be protected,” said University of South Carolina law professor Joseph Seiner, an expert in labor and employment editor of Workplace Prof blog.
In the 1989 decision of Price Waterhouse v. Hopkins, the Supreme Court ruled that it is the employer’s responsibility to prove that the disparity is not linked to the employee’s sex: “We have in the past confronted Title VII cases in which an employer has used an illegitimate criterion to distinguish among employees, and have held that it is the employer’s burden to justify decisions resulting from that practice.”
Seiner said even though the decision is 30 years old, it wasn’t until recently that some defendants have been using the argument that someone isn’t “acting enough like a sex or a gender” could also include sexual orientation.
“If somebody’s sexual orientation is being perceived as they’re not acting enough like a particular gender, then that should bring a separate cause of action. So it’s been some unique lawyering over the last several years that has caused this issue to bubble up,” he said.
Congress has not been able to address the issue legislatively by amending the Civil Rights Act or the Employee Non-Discrimination Act. Proposed bills have not gotten traction on Capitol Hill.
Some states have addressed the issue, but South Carolina is not one of them. The Uniform Antidiscrimination Act is currently in committee for the 2019-2020 legislative session. Rep. Todd Rutherford (D-Columbia), who is sponsoring the bill, did not respond to several requests for an interview.
South Carolina Equality said two cities have passed local policies protecting their employees from discrimination based on sexual orientation and gender identity: Columbia and Charleston. Both Richland and Charleston counties have similar policies.
In the lack of legislative protection, it’s up to private employers to adopt their own nondiscrimination policies in South Carolina. South Carolina Equality reports that eight out of South Carolina’s top 10 employers have nondiscrimination policies that include both sexual orientation and gender identity: Walmart, Greenville Health System and Palmetto Health [now one company called Prisma], Blue Cross and Blue Shield of South Carolina, Food Lion, The Boeing Co., Lowe’s Companies, and Wells Fargo and Co.
South Carolina Equality’s website says several state agencies, and public universities such as the University of South Carolina, Clemson University, and the Citadel have also adopted internal nondiscrimination employment responsibilities. (South Carolina Equality did not respond to multiple requests for comment.)
Seiner said he’s researched all areas of employment discrimination and found that in the last decade there have been a series of procedural hurdles that the Supreme Court has put in place that have made it more difficult to present employment discrimination claims.
“Even if this becomes part of the federal law, it’s still now more difficult than it was previously to bring these types of causes of action,” he said. “We’re looking at one specific part of this, but the bigger picture is all employment discrimination claims are harder to bring now than they were 10 or 15 years ago. So even if we include this in that part, there will be a cause of action there, but it’s still harder to bring that cause of action.”
If the court rules that sexual orientation is protected by federal law, businesses that have 15 or more employees would be prevented from discriminating against employees based on sexual orientation and could not create or permit a hostile work environment on that basis. Seiner said this outcome would have the most impact on South Carolina. If the court rules against it, not much would change in South Carolina.
Seiner said he will find the oral arguments presented by the court as “fascinating.” He has no prediction which way the court will rule, but expects the vote to be tight.
“I think it’s going to be a narrow decision,” he said. “My perception is that most legal experts think it’s going to be a narrow decision. But when you’re talking about statutory construction, it’s really looking at how we interpret a particular statute … It’s not looking at it strictly form policy grounds. It’s looking at how we define this law.”
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