(Reuters) - The U.S. Supreme Court doesn’t have to explain or justify its decisions to accept or reject requests for review, but a pair of newly filed petitions present an awfully strong case that the moment has come for the justices to decide whether gay and lesbian employees are protected from workplace discrimination under Title VII of the Civil Rights Act.
One petition was filed by Altitude Express, a New York skydiving outfit accused of firing instructor Donald Zarda after he told a customer he was gay. In February, you may recall, the 2nd U.S. Circuit Court of Appeals held (883 F.3d 100) that Zarda’s estate could bring Title VII claims against Altitude Express because the law’s prohibition against sex discrimination encompasses discrimination based on sexual orientation. To simplify ruthlessly: The 2nd Circuit, like the en banc 7th Circuit in 2017’s Hively v. Ivy Tech (853 F.3d 339) said its conclusion was the logical outgrowth of the Supreme Court’s prohibition on gender stereotyping in 1989’s Price Waterhouse v. Hopkins (109 S.Ct. 1775) and recognition in 1998’s Oncale v. Sundowner Offshore Services (118 S.Ct. 998) that Title VII protects both men and women from discrimination.
Altitude Express, represented by Saul Zabell of Zabell & Associates, said the 7th and 2nd Circuits’ decisions “departed from more than 50 years of established precedent” from every other federal appellate court to have ruled on the scope of Title VII protection for gay and lesbian employees. Its petition called on the Supreme Court to step in to resolve the circuit split.
The exact same call comes from a second Supreme Court petition filed this week – this one from an employee denied the right to sue his employer under Title VII for anti-gay discrimination. Gerald Bostock claims he was fired from his job as a child welfare services coordinator for a Georgia county’s juvenile court system when his employer found out he is gay. On May 10, a three-judge panel at the 11th Circuit ruled in an unpublished, per curiam decision that Bostock cannot sue Clayton County under Title VII because the law does not bar discrimination based on sexual orientation. Bostock’s lawyer, Brian Sutherland of Buckley Beal, had simultaneously asked the 11th Circuit to reconsider en banc its binding precedent on the scope of Title VII protection. The 11th Circuit denied that request when it issued its per curiam decision. Sutherland then hustled to get his petition to the Supreme Court a mere two weeks later.
Sutherland and his client are asking the Supreme Court to confirm that the 11th Circuit was wrong and the 2nd and 7th Circuits correctly interpreted its precedent in Hopkins and Oncale. “The court must grant the writ of certiorari in this case not only to resolve the circuit split and prevent further erosion of Price Waterhouse and Oncale by the lower courts struggling with how to apply them, but also because justice demands the unequivocal determination that discrimination against an employee because of sexual orientation is discrimination “because of ... sex” in violation of Title VII,” the petition said.
In other words, both an employer and an employee are asking the justices to resolve entrenched appellate disagreement – based on competing interpretations of the Supreme Court’s own precedent - about workplace rights of gays and lesbians. Both petitions also highlight disagreement within President Trump’s own administration about whether Title VII shields gay and lesbian employees from discrimination. In the 2nd Circuit’s en banc consideration of the Zarda case, the Equal Employment Opportunity Commission sided with Zarda’s estate, reiterating arguments the EEOC pioneered in a 2015 case that informed the 7th Circuit’s Hively opinion. The Justice Department submitted a competing amicus brief, arguing that discrimination on the basis of sexual orientation is different from discrimination based on sex. If even the government can’t agree on the scope of Title VII protection, the briefs said, the Supreme Court must provide clarity.
None of this is a guarantee, of course, that the justices will grant either or both when they conference on the petitions in September, after their summer break. Last December, the Supreme Court denied a petition for review of a different 11th Circuit ruling on Title VII and sexual orientation, 2017’s Evans v. Georgia Regional, despite an already-existing split between the 7th and 11th Circuits. On the other hand, the Evans case presented the procedural complication - the defendant, a hospital, disputed the 11th Circuit’s jurisdiction and refused to participate in the appeals court or at the Supreme Court – that may have compromised it as a vehicle to decide an issue with broad nationwide implications. And the circuit split has only deepened since the justices turned down the Evans case, with the en banc 2nd Circuit ruling in Zarda and the 11th Circuit decision in Bostock.
“It’s time,” said Bostock counsel Sutherland. “The more time that goes by without clarity from the Supreme Court, the more confusion there will be in the lower courts.”
Donald Zarda’s estate, meanwhile, will oppose Supreme Court review, according to its lawyer, Gregory Antollino. “I think more circuits need to weigh in,” he told me, citing a pending Title VII discrimination suit by a gay employee at the 8th Circuit. “There have to be more than three circuits before the Supreme Court jumps in.”
Clayton County, the defendant in the Bostock case, was represented at the 11th Circuit by Freeman Mathis & Gary. Partner Jack Hancock didn’t return my phone call. Altitude Express lawyer Zabell didn’t respond to my phone message asking about Bostock’s parallel Supreme Court petition.