The issue that arose in Indiana from the employment discrimination case against Ivy Tech will go before the U.S. Supreme Court on Tuesday as the nine justices will be asked whether Title VII protections extend to sexual orientation and gender identity.
In the landmark 2017 Kimberly Hively v. Ivy Tech Community College of Indiana, 15-1720, a split 7th Circuit held Title VII’s prohibition against discrimination on the basis of “sex” includes sexual orientation. Although Ivy Tech eventually reached a settlement with its former math professor, the ruling propelled similar disputes into other circuits.
Two of those have been consolidated — Zarda v. Altitude Express, Inc., 15-3775, from the 2nd and Bostock v. Clayton County, Georgia, 17-1618, from the 11th — and will be argued at the Supreme Court. The central question mirrors Hively in whether Title VII of the 1964 Civil Rights Act covers sexual orientation.
Relatedly, the justices will also hear arguments in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, 18-107, which focuses on whether Title VII prohibits discrimination against transgender individuals.
Gregory Nevins, Lambda Legal senior counsel and director of the employment fairness project, pointed out these cases are requiring the court to interpret statute as opposed to the Constitution. Where the conservative justices on the court might hesitate to issue an opinion that they believe will wrongly expand protections not specifically stated in the Constitution’s language, they might not be so reluctant when determining what a federal law does or does not allow.
However, Steve Sanders, professor at Indiana University Maurer School of Law, is not optimistic for the LGBT plaintiffs. In a recent opinion piece, he noted there is skepticism about whether the arguments that convinced the majority of the 7th Circuit will sway the conservative majority at the Supreme Court.
An amicus brief authored by Tennessee and joined by 14 other states holds the Supreme Court should reject the arguments that Title VII extends to sexual orientation, gender identity and transgender status. They echoed the reasoning 7th Circuit Judge Diane Sykes applied in her dissent to Hively, namely the courts should leave any extension of Title VII protections to Congress.
Indiana was not a party to the Tennessee brief, but an Indiana company, Cummins, Inc., did join another amicus brief submitted on behalf of 206 businesses. The businesses asserted company policies prohibiting discrimination are no substitute for the force of law. Federal protection is needed, they argued, because the patchwork of state laws and company policies leaves employees vulnerable to discrimination and can diminish their health and productivity.
Nevins highlighted the arguments from the employers in the three cases reflect a shift in public opinion. While they deny firing a worker for being a gay or lesbian, the employers are blatant about admitting the employee was let go for being transgender.
Both Nevins and Sanders said the wrangling of this issue in the courts does underscore the need for Congress to update the law. In particular, Nevins said Capitol Hill should pass the Equality Act. This legislation not only prohibits discrimination based on sex including sexual orientation, gender identity, or sex-based stereotypes, but also expands the definition of public accommodations to include places that provide recreation, exercise, exhibitions, good and services.
The Act passed the House of Representatives in May and has been referred to the Senate Committee on the Judiciary. Among the 236 representatives who voted in favor of the bill were Indiana Democrats Andre Carson and Peter Visclosky, who were joined by Republican Susan Brooks. The other Indiana Republicans — Jackie Walorski, Jim Banks, James Baird, Greg Pence and Trey Hollingsworth — all voted against the measure, while Larry Bucshon did not vote.