Does the Civil Rights Act of 1964 Provide Protection to Gay and Transgender People in the Workplace?

The Supreme Court. (Eric Baradat/AFP/Getty Images)

Commentary  by Elad Hakim  |   Epoch Times

In late 2019, the Supreme Court will decide whether the Civil Rights Act of 1964 guarantees protections to gay and transgender people in the workplace.

The court will consider three cases when formulating its opinion: Altitude Express Inc. v. ZardaBostock v. Clayton County, Ga. and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.

The Supreme Court’s eventual ruling will significantly shape and define the extent of the rights and protections, if any, that are afforded to these individuals in the workplace pursuant to the Civil Rights Act.

In Zarda, a New York case, Donald Zarda, a skydiving instructor, alleged that was fired because he was gay after a female customer complained about being strapped to him during a skydive. After Zarda passed away, his estate continued the suit under Title VII, the New York Times reported.

The U.S. Court of Appeals for the Second Circuit, by way of a divided panel, ruled that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” The dissenting opinion, on the other hand, stressed that Title VII does not protect on the basis of sexual orientation.

In Bostock, a Georgia case, a child welfare services coordinator claimed that he was fired because he was gay. Unlike the Zarda court, the 11th Circuit in Atlanta, Georgia, concluded that “discharge for homosexuality is not prohibited by Title VII,” quoting a decision from a 1979 case.

Finally, in the R.G. case, Aimee Stevens claimed that she was fired after announcing that she was a transgender woman and would start wearing women’s clothing to work, according to the New York Times.

The U.S. Court of Appeals for the Sixth Circuit ruled in Stevens’ favor, stating that, “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex. Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”

Defining Sex

According to the Equal Employment Opportunity Commission (EEOC), Title VII of the Civil Rights Act of 1964 bans discrimination on the basis of race, color, religion, sex, or national origin. What is notably absent from Title VII is a specific reference to sexual orientation or transgender status. Therefore, the Trump administration has taken the position that the Civil Rights Act of 1964 should not be read to include sexual orientation or transgender status, as they are not specifically referenced in the Act.

Based on the language utilized by the Zarda, Bostock, and R.G. courts, the answer to this question appears to hinge, in part, on how the term “sex” is defined.

For example, the court in the Zarda case broadly defined this term and was unable or unwilling to differentiate between discrimination based on sex and sexual orientation. In other words, the court seemed to say that because discrimination based on sexual orientation is somewhat tied and/or related to one’s sex, and since a person’s sex is protected under the Act, sexual orientation is also protected.

Of course, the court in the Bostock case disagreed with this interpretation and applied a much narrower definition of the term.

Finally, in the case involving Aimee Stevens (R.G.), the Department of Justice argued for a narrow definition of the term in a brief, stating: “When Title VII was enacted in 1964, ‘sex’ meant biological sex; it “refer[red] to [the] physiological distinction[]’ between ‘male and female.’ … Title VII thus does not apply to discrimination against an individual based on his or her gender identity.” Notwithstanding this argument, the R.G. court also took a broad definition of the term, like in Zarda.

The issue of workplace discrimination involving those who identify as transgender could pose some interesting legal questions.

For example, suppose that a woman is hired as an aide in a nursing home that services only female residents. The nursing home only hires female aides due to the privacy and safety concerns of its residents. As an aide, her responsibilities are to help with toileting, bathing, and dressing. Six months after starting her job, she begins to transition from a female to a male. She eventually completes the transition and is subsequently terminated from her position. The employer alleges that the termination was permissible because being a female is a bona fide occupational qualification (BFOQ) for the job due to the residents’ privacy concerns. Who would prevail under such circumstances?

While not binding in nature, a November 2013 letter written by EEOC Office of Legal Counsel staff members discusses the applicability of the BFOQ defense and some of the circumstances under which it does and doesn’t apply.

For example:

“The EEOC has long recognized the possibility of a sex-based BFOQ premised on the privacy interests of individuals who are institutionalized or infirm. … As noted in the 2002 letter, some courts have found a sex-based BFOQ in order to protect the bodily privacy interests of patients or customers from members of the opposite sex.  … In these cases, EEOC and courts first scrutinize the extent to which the job requires workers to come into physical contact with their clients, particularly while the clients are undressed or exposed. Please note that this rationale has been applied to the privacy interests of both women and men.”

This hypothetical is but one example of the various scenarios that could realistically arise in the workplace. Therefore, the nature and scope of the Supreme Court’s upcoming decision could have far-reaching implications.

With the Supreme Court’s relatively new conservative majority, it will be interesting to see how the justices ultimately decide these important issues. As is evident, the courts have been somewhat inconsistent with their approach. As such, the Supreme Court will ultimately have to flex its muscle to settle these issues for everyone.

Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Western Journal, American Thinker, and other online publications. 

Views expressed in this article are the opinions of the author.

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