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Court to take up LGBT rights in the workplace (Updated)

[Editor’s Note: This post was updated at 11:50 a.m. to include discussion of CITGO Asphalt Refining Co. v. Frescati Shipping Co., Barton v. Barr and Putnam Investments v. Brotherston.]

The Supreme Court announced today that it will weigh in next term on whether federal employment discrimination laws protect LGBT employees. After considering a trio of cases — two claiming discrimination based on sexual orientation and the third claiming discrimination based on transgender status — at 11 consecutive conferences, the justices agreed to review them. Until today, the cases slated for oral argument next term had been relatively low-profile, but this morning’s announcement means that the justices will have what will almost certainly be blockbuster cases on their docket next fall, with rulings to follow during the 2020 presidential campaign.

In Altitude Express v. Zarda, the justices will decide whether federal laws banning employment discrimination protect gay and lesbian employees. The petition for review was filed by a New York skydiving company, now known as Altitude Express. After the company fired Donald Zarda, who worked as an instructor for the company, Zarda went to federal court, where he contended that he was terminated because he was gay – a violation of (among other things) Title VII of the Civil Rights Act of 1964, which bars discrimination “because of sex.”

The trial court threw out Zarda’s Title VII claim, reasoning that Title VII does not allow claims alleging discrimination based on sexual orientation. But the full U.S. Court of Appeals for the 2nd Circuit reversed that holding, concluding that Title VII does apply to discrimination based on sexual orientation because such discrimination “is a subset of sex discrimination.”

Altitude Express took its case to the Supreme Court last year, asking the justices to weigh in. In 2017, the justices had denied review of a similar case, filed by a woman who alleged that she had been harassed and passed over for a promotion at her job as a hospital security officer in Georgia because she was a lesbian. However, that case came to the court in a somewhat unusual posture: Neither the hospital nor the individual employees named in the lawsuit had participated in the proceedings in the lower courts, and they had told the Supreme Court that they would continue to stay out of the case even if review were granted, which may have made the justices wary about reviewing the case on the merits.

Altitude Express’ case will be consolidated for one hour of oral argument with the second case involving the rights of gay and lesbian employees: Bostock v. Clayton County, Georgia. The petitioner in the case, Gerald Bostock, worked as a child-welfare-services coordinator in Clayton County, Georgia. Bostock argued that after the county learned that he was gay, it falsely accused him of mismanaging public money so that it could fire him – when it was in fact firing him because he was gay.

Bostock went to federal court, arguing that his firing violated Title VII. The county urged the court to dismiss the case, arguing that Title VII does not apply to discrimination based on sexual orientation. The district court agreed, and the U.S. Court of Appeals for the 11th Circuit upheld that ruling.

In the third case granted today, R.G. & G.R. Harris Funeral Homes v. EEOC, the justices will consider whether Title VII’s protections apply to transgender employees. The petition for review was filed by a small funeral home in Michigan, owned by Thomas Rost, who describes himself as a devout Christian. In 2007, the funeral home hired Aimee Stephens, whose employment records identified Stephens as a man. Six years later, Stephens told Rost that Stephens identified as a woman and wanted to wear women’s clothing to work. Rost fired Stephens, because Rost believed both that allowing Stephens to wear women’s clothes would violate the funeral home’s dress code and that he would be “violating God’s commands” by allowing Stephens to dress in women’s clothing.

The federal Equal Employment Opportunity Commission filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens. The funeral home went to the Supreme Court last summer, asking it to review the lower court’s ruling. Today the justices granted the funeral home’s petition for review, agreeing to consider whether Title VII bars discrimination against transgender people based on either their status as transgender or sex stereotyping under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which indicates that a company can’t discriminate based on stereotypes of how a man or woman should appear or behave. The funeral home’s case will be argued separately from Bostock and Altitude Express.

This morning the justices added two other cases to their docket for next term. In CITGO Asphalt Refining Co. v. Frescati Shipping Co., the justices will review a dispute that arises out of a massive oil spill in 2004, which resulted when the oil tanker Athos I, which CITGO had chartered, struck an abandoned anchor in the Delaware River. As John Elwood explained for SCOTUSblog, the question presented by the case as it comes to the court is whether a “safe port” or “safe berth” clause in the contract governing the charter providing that CITGO would direct the tanker to a “safe place or wharf” was a guarantee of safety or instead simply required CITGO to use due diligence.

In Barton v. Barr, the justices will consider the case of Andre Barton, a 40-year-old native of Jamaica who came to the United States as a child in 1989 and obtained his green card – becoming a lawful permanent resident – a few years later. In January 1996, Barton was charged with aggravated assault, damage to property and first-degree possession of a gun during the commission of a felony. In 2007 and 2008, he was arrested on drug possession charges but has stayed out of trouble since then: He graduated from technical college and now runs a car shop; his four children and his fiancée are all U.S. citizens.

In 2008, the government began proceedings to deport Barton. Under federal immigration laws, a green-card holder can fend off deportation if he has lived in the United States continuously for at least seven years. But under a provision known as the “stop-time” rule, the period of continuous residence ends if he commits an offense that would make him inadmissible to the United States. The question that the court agreed to review today in Barton’s case is whether a lawful permanent resident can, for purposes of the “stop-time” rule, commit an offense that makes him inadmissible if he is not seeking to be admitted to the United States.

The justices asked the U.S. solicitor general to provide the federal government’s views in Putnam Investments v. Brotherston, a case filed against Putnam Investments by former employees of the company. The employees alleged that Putnam and its benefits-management committee had allowed participants in its retirement plan to invest in mutual funds managed by the company without adequately investigating the funds. The justices asked the government to weigh in on whether a plaintiff in a case like this one, filed under the Employee Income Retirement Security Act of 1974, has to show that losses to a plan result from the defendant’s breach of its duty, or whether the defendants instead have to show that they didn’t cause the loss. There is no deadline for the solicitor general to file his brief.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in CITGO. The author of this post, however, is not affiliated with the firm.]

Recommended Citation: Amy Howe, Court to take up LGBT rights in the workplace (Updated), SCOTUSblog (Apr. 22, 2019, 10:35 AM),