The Supreme Court Will Judge Employers' Shady Excuses for Firing LGBTQ People

For 10 years, Gerald Bostock, 55, had his dream job assigning volunteers to represent abused and neglected children in the Juvenile Court of Clayton County, Georgia. Then, in 2012, he was diagnosed with prostate cancer. A year later, in an attempt to aid his physical and mental health, he joined an LGBTQ softball league. But soon after his co-workers found out about his involvement with the league, Bostock—who says his performance reviews were excellent during all 10 years of his employment—was fired.

Bostock said he believes he was fired for being gay; his employer says Bostock was fired because an audit of his work found that he was mismanaging public funds.

“There are a lot of people impacted by this homophobic action that Clayton County took,” Bostock said. “What about those children in Clayton County care that identify as LGBTQ? They lost a positive role model in this, and a very clear homophobic message was sent to them that their lives don’t matter.”

On Tuesday, the Supreme Court will hear Bostock’s case, along with the cases of two others who believe they were fired for their LGBTQ identities. All three are arguing that their employment is protected under the Civil Rights Act of 1964, which outlaws discrimination based on sex, among other factors. “Any decision based on sexual orientation is already based on the employee’s sex,” said Brian Sutherland, Bostock’s lawyer.

There are currently no federal protections explicitly prohibiting discrimination based on sexual orientation and gender identity. In lieu of federal anti-discrimination laws, 33 states (and D.C.) have introduced some form of these protections, meaning that, four years after legalizing same-sex marriage across the country, there are still 17 states where it is legal to discriminate against someone because they are LGBTQ. The three LGBTQ cases heading to the Supreme Court on Tuesday could put an end to that.

The case of Donald Zarda, a gay skydiving instructor who was fired in 2010, will be heard in conjunction with Bostock’s. In 2010, before jumping out of a plane on a skydiving trip, Zarda informed a client of his sexual orientation. According to his legal documents, Zarda often told his women clients that he was gay to “mitigate any awkwardness that might arise from the fact that he was strapped tightly.” After a safe landing, the woman told her boyfriend that this encounter with Zarda made her uncomfortable and accused Zarda of inappropriate touching. Her boyfriend then complained to Zarda’s employer, Altitude Express, who promptly fired Zarda based on the allegation. Zarda, however, believed he was fired for being gay and thus not conforming to a “straight male macho stereotype.”

Zarda did not live to see what would come of his case. He died in 2014 in a BASE-jumping accident in Switzerland, leaving behind his sister and partner to see it through. In February 2018, the 2nd U.S. Circuit Court of Appeals ruled in his favor.

As with Zarda, the U.S. Court of Appeals for the 6th Circuit ruled in favor of Aimee Stephens, a transgender woman who was fired from a funeral home in Michigan after writing an emotional letter to her co-workers about her struggle with gender dysphoria. The letter mentioned that she would return to work dressed in appropriate women’s business attire. The funeral home’s owner, Thomas Rost, subsequently fired Stephens for her “plan to violate dress code,” because she would no longer be showing up to work dressed as a man. Stephens’ case—which will be heard separately from Zarda and Bostock’s, though on the same day—could have grave consequences for cisgender men and women, too. If the court rules against her, they effectively give employers the right to decide how men and women must dress, regardless of whether the employee is straight, cis, and/or LGBTQ.

After winning their cases in lower courts, arguing them again in front of the Supreme Court on Tuesday threatens Zarda and Stephens’ respective victories. The ACLU will represent Zarda and Stephens on Tuesday. Bostock, however, is hoping the Supreme Court rules differently than the lower court in Atlanta, which refused to hear his case on the basis that Title VII does not cover sexual orientation.

Regardless, the odds are stacked against all three plaintiffs, with the departure of Justice Anthony Kennedy and the presence of two Trump appointees, justices Brett Kavanaugh and Neil Gorsuch. The Trump administration has already come out against Bostock, Zarda, and Stephens in two briefs filed with the Supreme Court last month, one of which argued that sex discrimination only exists when people of one sex are treated differently than those of another. “Sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other,” one brief reads.

While the employers in all three cases have not explicitly stated that they each respectively fired Bostock, Zarda, and Stephens because of their LGBTQ identities—instead citing reasons like mismanaging public money or dress code—the Trump administration has been very clear that these cases are indeed about LGBTQ identity.

“Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex, but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect,” the administration’s brief on Bostock and Zarda’s case reads.

The Supreme Court’s rulings, whether they support the LGBTQ community or further institutionalize their discrimination, will be landmark. “Efforts to restrict the meaning of discrimination because of sex will equip employers to adopt more rigid rules for sex-based dress and behavior,” said Chase Strangio, the ACLU lawyer representing Stephens. “This case could turn back the clock on equality for everyone, not just LGBTQ people.”

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