Three Issues To Watch This Supreme Court Term

Employment Law


The 2019-2020 U.S. Supreme Court term could have a significant impact on the employment law area, with three major issues already on the docket for the justices to consider.

  • In the first week of the term, the Court already heard oral argument in a trio of cases asking whether Title VII’s ban on sex-based discrimination prohibits discrimination based on sexual orientation, as well as if the statute prohibits discrimination against transgender plaintiffs based on their status as transgender or based on sex stereotyping.

    To tackle the first question, the Court granted cert in cases that demonstrate the circuit split that has developed on the issue. The U.S. Court of Appeals for the Second Circuit ruled that sexual orientation discrimination does fall under the umbrella of Title VII in a case involving a New York skydiver who revealed his sexual orientation to a customer. The Eleventh Circuit, in contrast, reached the opposite conclusion when considering the claims of a Georgia hospital security officer who claimed she was constructively discharged because she did not conduct herself in a traditional female manner and consistent with gender stereotypes.

    With regard to protection for transgender employees, the justices considered a case brought by the Equal Employment Opportunity Commission (EEOC) against a funeral home company in Michigan. Two weeks after Aimee Stephens announced her plans to transition from male to female, the company’s owner informed her that what she was “proposing to do” was unacceptable and terminated her. The funeral home argued that the Religious Freedom Restoration Act shields it from liability, but the Sixth Circuit disagreed in EEOC v. R.G. & G.R. Harris Funeral Homes. “Tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it,” the court wrote. “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

    At oral argument, the justices appeared divided, offering a range of views. Justice Samuel Alito accused the plaintiffs of “trying to change the meaning of ‘sex,’” while Justice Neil Gorsuch suggested that perhaps Congress should tackle the question, noting that “it’s a question of judicial modesty.”

    On the other end of the spectrum, Justice Sonia Sotomayor asked at what point the justices need to intervene in order to put a halt to “invidious discrimination,” as individuals are still being fired just because of their sexual orientation.
  • The Court is also set to consider whether the Age Discrimination in Employment Act (ADEA) requires a plaintiff to prove that age was a “but-for” cause of the challenged personnel action in Babb v. Wilkie. Clinical pharmacist Dr. Noris Babb filed suit under the ADEA, accusing her former employer of gender and age discrimination. A district court judge granted summary judgment in favor of the employer, and the Eleventh Circuit affirmed, applying the “but-for” standard of causation. The panel said its hands were tied by precedent that applied the but-for standard in lieu of the more lenient “motivating factor” standard advocated by Babb. The Ninth Circuit has agreed with the Eleventh Circuit, but the D.C. Circuit applied the “motivating factor” standard in an ADEA case instead. A date has not yet been set for argument in this case.
  • The third employment law case already in the lineup involves a similar question regarding the appropriate causation standard to apply regarding a §1981 claim. The dispute involves African-American-owned Entertainment Studios Networks, which alleged that Comcast Corporation refused to carry any of the network’s channels for more than seven years while at the same time introducing more than 80 lesser-known, white-owned channels. The district court dismissed the complaint, but a panel of the Ninth Circuit reversed. The “most natural reading” of the text of §1981 is that if discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff—even if it is merely one factor and not the sole cause of the decision—then the plaintiff has not enjoyed the same right as a white citizen, the panel stated. “Even if racial animus was not the but-for cause of a defendant’s refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a factor in that decision such that she was denied the same right as a white citizen,” the court wrote. When the en banc Ninth Circuit declined to rehear the case, Comcast asked the Supreme Court to take up the issue. The justices will hear oral argument regarding this case in November.

To read the transcript of the oral argument in Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, click here.

To read the transcript of the oral argument in the Harris case, click here.

To read the Eleventh Circuit opinion in Babb v. Wilkie, click here.

To read the Ninth Circuit opinion in Comcast Corp. v. National Association of African-American Owned Media, click here.

Why it matters: Employment lawyers should keep a close eye on the Supreme Court this term, with significant issues on the agenda for employers. The justices appeared divided at oral argument with respect to the trio of cases involving sexual orientation and Title VII. A decision from the Court is expected later this term.