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 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.
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 shouldn’t be read to include sexual orientation or transgender status, as they aren’t specifically referenced in the law.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 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.
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 the 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?
“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.