Next Tuesday, the Supreme Court will hear oral argument in two cases that present the issue whether the landmark federal statute that bars certain discrimination in employment—Title VII of the Civil Rights Act of 1964—prohibits employers from firing people because of their sexual orientation. Taking the opposite position of the federal agency responsible for administering Title VII, the Trump Administration's Department of Justice has entered the case on the side of the defendant employers to argue the statute's prohibition on discrimination on the basis of "sex" does not encompass sexual-orientation discrimination.

Whether people can be fired because of their sexual orientation is an issue that comes to the court following a 20-year stretch in which it delivered a string of groundbreaking decisions advancing legal protections for gays and lesbians. In 1996 the court invalidated a state constitutional amendment that sought to foreclose any branch or political subdivision of the state from protecting persons against discrimination based on sexual orientation; in 2003 it invalidated laws criminalizing consensual sexual activity in the home between those of the same sex; and in 2013 it invalidated a federal statute to the extent it barred the federal government from treating same-sex marriages as valid even when they were lawful in the state that licensed them. Finally, in 2015 came the momentous decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), recognizing the constitutional right of same-sex couples to marry.

Nonetheless, this year—the 50th anniversary of the Stonewall uprising—may mark a turning point for the LGBTQ community in the Supreme Court. The changes to the court since Obergefell are ominous, as the now-retired Anthony Kennedy had authored all four of the court's sexual-orientation decisions since 1996. As others have noted, we now face the prospect of a legal regime that entitles two people of the same sex to be married on Saturday and then allows them to be fired on Monday when their bosses learn of the wedding.

In anticipation of next week's oral arguments, it may be useful to understand the broader Title VII landscape bearing on the issue before the court and the reasoning of the lower courts. And an examination of the cases in the Court of Appeals, one from the U.S. Court of Appeals for the Second Circuit and one from the Eleventh, reveals the dramatically different approaches the two courts took in handling the pivotal issue now before the Supreme Court.

The Title VII Landscape

Among its groundbreaking provisions, the Civil Rights Act of 1964 prohibited a wide range of discriminatory employment practices. In relevant part, the act's Title VII declares,

It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge…or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin… .

The Supreme Court has never addressed the specific issue whether Title VII's prohibition of discrimination "because of…sex" encompasses discrimination because of sexual orientation. Nonetheless, the court has decided two cases that bear significantly on the sexual-orientation claim before it next week.

Most significantly, in 1989 the court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that Title VII's bar on "sex" discrimination reaches what is known as "sex stereotyping" claims. The plaintiff Ann Hopkins had been a senior manager at Price Waterhouse, a national accounting firm, and was denied promotion to become a partner. The promotional process included soliciting comments from all partners, with some comments noting occasions where Hopkins' lauded aggressiveness had "spilled over into abrasiveness." But there were clear signs that "some of the partners reacted negatively to Hopkins' personality because she was a woman":

One partner described her as "macho"; another suggested that she "overcompensated for being a woman"; a third advised her to take "a course at charm school." Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it's a lady using foul language." Another supporter explained that Hopkins "ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate." But it was the man who … bore responsibility for explaining to Hopkins the reasons for the Policy Board's decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."

While most of the court's Price Waterhouse opinion delves into the minutiae of burden-shifting in Title VII cases, it briefly addresses the key statutory issue whether the sex-stereotype discrimination Hopkins faced amounts to discrimination "because of…sex":

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.

Nine years later the court held in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), that Title VII reaches workplace harassment by a person of the same sex as the victim, explaining:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Despite Price Waterhouse and Oncale, for 50 years the Court of Appeals uniformly had rejected the proposition that Title VII barred sexual-orientation discrimination, often with minimal discussion or by relying on a narrow view of congressional intent in enacting Title VII. That jurisprudence came to a dramatic end in 2017, when the U.S. Court of Appeals for the Seventh Circuit en banc—relying on Price Waterhouse, Oncale, and an EEOC change of position—overruled prior circuit precedent and held that Title VII reaches sexual-orientation discrimination. The employer did not seek Supreme Court review, leaving the issue to the two cases now before the court.

Donald Zarda and Gerald Bostock

Donald Zarda was fired as a skydiving instructor after his boss learned from a client that Zarda was gay. Gerald Bostock was fired from his job with a Georgia county working with abused and neglected children a few months after he joined a gay recreational softball league. Both men filed suit claiming sexual-orientation discrimination in violation of Title VII, with their common fate now before the Supreme Court. But their experiences in the Second Circuit and Eleventh Circuit were wildly different, with Zarda's alone revealing the various issues before the Supreme Court.

Zarda's case reached the full Second Circuit after Chief Judge Katzmann, writing in a separate case that also presented the Title VII sexual-orientation issue, made an unusual plea for en banc review, which the Second Circuit rarely undertakes. He in turn wrote the decision for the full court, which splintered and produced eight separate opinions spanning 163 pages.

Katzmann's decision in Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018) (en banc), only portions of which commanded a majority of the 13 participating judges, articulated three separate arguments for concluding why Title VII's bar on "sex" discrimination reaches sexual-orientation discrimination. The first is one of definitional logic, contending that the very act of labeling someone as gay, lesbian, or bisexual requires one

to know the sex of the person and that of the people to whom he or she is attracted. Because one cannot fully define a person's sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person's sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

The second argument invokes Price Waterhouse and its recognition that sex-stereotyping is a form of sex discrimination. In a section joined by only five other members of the court, Katzmann reasoned,

Viewing the relationship between sexual orientation and sex through the lens of gender stereotyping provides yet another basis for concluding that sexual orientation discrimination is a subset of sex discrimination. Specifically, this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.

….

Applying Price Waterhouse's reasoning to sexual orientation, we conclude that when, for example, "an employer … acts on the basis of a belief that [men] cannot be [attracted to men], or that [they] must not be," but takes no such action against women who are attracted to men, the employer "has acted on the basis of gender."

The final argument—and the one that garnered the most support, including from typically conservative former Chief Judge Dennis Jacobs—invokes what is known as "associational discrimination" and draws on well-established law that Title VII also encompasses discriminatory acts based not on the race of the employee but on the race of persons with whom the employee chooses to associate (the prototypical example being a white employee fired for being married to a black person):

If an employer disapproves of close friendships among persons of opposite sexes and fires a female employee because she has male friends, the employee has been discriminated against because of her own sex. Once we accept this premise, it makes little sense to carve out same-sex romantic relationships as an association to which these protections do not apply. [I]f a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because the fact that the employee is a man instead of a woman motivated the employer's discrimination against him.

As did the Second Circuit in Zarda, the Eleventh Circuit faced prior precedent when it encountered Bostock's Title VII sexual-orientation claim, but it took a very different approach. Without oral argument, the panel summarily dismissed the claim, citing a 1979 circuit decision that contained a single sentence on the issue: "Discharge for homosexuality is not prohibited by Title VII…." The full court refused to hear the case en banc, despite an impassioned plea by two judges that it revisits its nearly 40-year old precedent in light of modern developments and the Supreme Court's decision in Price Waterhouse: "I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine when it comes to an issue that affects so many people." Thus, in stark contrast to Zarda, Bostock arrives at the Supreme Court next week with zero analysis from the Eleventh Circuit.

Looking Forward

Next week's arguments in Zarda and Bostick may mark a turning point in the Supreme Court's willingness to protect the rights and dignities of people regardless of their sexual orientation. While these cases differ from Obergefell and the three major sexual-orientation cases that preceded it in that they present an issue of statutory rather than constitutional interpretation, Supreme Court endorsement of a view of Title VII allowing employers to fire people because of their sexual orientation would be a grievous step backwards. Moreover, given the hostility of Senate Republicans and of President Donald Trump, it is a step back that would stand little chance of being remedied through legislative action anytime soon. For these reasons, many of us will be watching next week's arguments with anxious trepidation.

Christopher Dunn is the legal director of the New York Civil Liberties Union. He can be reached at [email protected].