May 31, 2018 at 2:55 pm EDT | by Chris Johnson
Petitions renew call on Supreme Court to clarify if Title VII covers gays

Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

New petitions call on the Supreme Court to clarify if Title VII covers gay people. (Washington Blade file photo by Michael Key)

Although the U.S. Supreme Court previously declined to take up the issue, two new opportunities have reached justices that would enable them to make clear anti-gay discrimination is illegal under federal law.

Two petitions for certiorari — one from an employer accused of firing a worker for being gay, another from a gay worker in separate case alleging discrimination — ask justices to rule on whether the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 applies to lesbian, gay and bisexual people who experience sexual-orientation bias in the workplace.

The first petition was filed by Altitude Express, a New York company that fired now deceased gay skydiver Donald Zarda after he came out as gay to a client. Alleging sexual-orientation discrimination, Zarda and his estate filed lawsuit in state and federal court. The federal lawsuit led the U.S. Second Circuit of Appeals to determine Zarda could sue under Title VII, making it one of two courts to determine anti-gay discrimination is sex discrimination.

The other petition was filed by Gerald Lynn Bostock, who alleges Clayton County Juvenile Court System terminated after his employers found out he’s gay. His case went through the 11th Circuit, which reaffirmed last year in a separate case Title VII doesn’t apply to anti-gay discrimination. The 11th Circuit also ruled in Bostock’s case he couldn’t seek recourse under federal law.

It wasn’t immediately known when the petitions were filed, although the Zarda petition is dated May 29. But they were apparently filed within the last few days. The LGBT group Freedom for All Americans issued a statement late Wednesday drawing attention to the petitions.

No explicit non-discrimination protections for LGBT people in employment currently exist under federal law. The question presented to the high court in both petitions is whether sexual-orientation discrimination against in employment is, in fact, illegal because it amounts to employment discrimination “because of…sex” under Title VII of the Civil Rights Act of 1964.

A lawyer for Altitude Express, Saul Zabell, had previously told the Blade his client in the aftermath of the Second Circuit ruling was considering filing a petition seeking review of the decision before the Supreme Court. The same attorney also told Reuters he “agreed with the ruling on Title VII.”

Masen Davis, executive director of Freedom for All Americans, pounced on Zabell’s previous assertion he agrees with Second Circuit ruling as evidence his petition amounts to a reversal.

“Our opponents in Zarda already conceded that Title VII protects people from discrimination based on sexual orientation – and now they’re backtracking and trying to get the Supreme Court to weigh in,” Davis said. “It’s hard to imagine what’s causing such a sudden change of heart from the defendants, but they’re staking out an argument at odds with growing legal precedent and public opinion.”

A growing number of courts have determined anti-gay discrimination amounts to sex discrimination and laws prohibiting sex discrimination, such as Title VII, also apply to lesbian, gay and bisexual people.

Last year, the U.S. Seventh Circuit Court of Appeals and the U.S. Second Circuit Court of Appeals determined anti-gay discrimination is illegal under current law. However, the 11th Circuit Court of Appeals reached the opposite conclusion and found lesbian, gay and bisexual people aren’t protected.

In 2015, the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment civil rights law, determined Title VII protects lesbian, gay and bisexual in the case of Baldwin v. Foxx. The U.S. Justice Department under U.S. Attorney General Jeff Sessions has taken the opposite view and litigated gay people aren’t protected under Title VII before the Second Circuit.

The Supreme Court heretofore has stayed out of the issue. Despite the circuit split on the issue, justices last year declined to take up a petition filed by Lambda Legal in the 11th Circuit case. The LGBT legal group was representing Jameka Evans, a security guard who claims she was targeted for harassment and effectively terminated from her job at Georgia Regional Hospital for being a lesbian.

But that rejection happened was before the Second Circuit rendered its decision. With the circuit split enhanced by that ruling and two new petitions before the Supreme Court, justices could reconsider their earlier pass and take up the issue.

Anthony Kreis, a visiting assistant law professor at the Illinois Institute of Technology, said the Zarda petition is “an exponentially better vehicle” than the Evans petition the Supreme Court previously rejected.

“Now that there is a larger split in the circuits, the court is more likely to review a sexual orientation case,” Kreis said. “That’s true in any litigation. However, the Evans case was unusual in that while she lost on the question of whether Title VII bans sexual orientation claims, she still had a viable lawsuit under alternative theories of gender discrimination. The court is unlikely to take up any case where the appealing party still has a viable remedy. Here, Altitude Express was a clear loser in the Second Circuit, making the issue more clear cut for the court should the justices want to take it.”

If the Supreme Court were to take up either petition, it could rule lesbian, gay and bisexual people are protected under Title VII, or it could determine the law provides no legal recourse for sexual-orientation discrimination.

Despite the risk, obtaining a ruling from the Supreme Court establishing lesbian, gay and bisexual protections under federal law has been a goal of LGBT legal groups.

In the Eighth Circuit, Lambda Legal has filed an appeal of a lawsuit filed by Mark Horton, a gay man offered a high-ranking job at Midwest Geriatric Management that was later withdrawn after the company found out he had a same-sex partner. Regardless of the upcoming ruling from the Eighth Circuit, that case could be another vehicle that could lead the Supreme Court to rule anti-gay discrimination is prohibited under the law.

There’s no deadline for the Supreme Court to act on petitions. Even if the Supreme Court were to agree to take up either cases, they wouldn’t be able to hear the case and issue a ruling before the end of its term next month. Any such decision would have to wait for the 2018-2019 term.

Transgender people wouldn’t be explicitly impacted by the decision. The questions in the petition ask the Supreme Court to settle whether sexual-orientation discrimination is covered under current law, not gender-identity discrimination. A ruling from the Supreme Court on anti-gay discrimination, however, would likely weigh into lower courts reasoning in cases of anti-trans discrimination.

The petitions are filed before the Supreme Court as justices continue to weigh the Masterpiece Cakeshop case in which a Colorado baker is asserts a First Amendment right to be able to refuse to make custom-made wedding cakes for same-sex couples despite his state’s non-discrimination law. A decision in that case is expected before the end of June.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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