The answer is complicated, but employees have many ways to defend themselves if they suffer a wrongful termination, workplace harassment or discrimination. Federal, state and local laws may be on the side of LGBTQ people in ways that you may not expect. In addition, a Supreme Court decision expected in the summer of 2020 may change the legal landscape in fundamental ways that will affect LGBTQ rights in the U.S.

The Fifth Circuit Court of Appeals, which includes Texas, has not interpreted Title VII of the Civil Rights Act of 1964 as a protection of the employment rights of LGBTQ people. Also, there is no state law in Texas that protects the employment rights of LGBTQ employees. However, there are certain local laws that protect specific subsets of employees, including public employees, from being fired based on sexual orientation or gender identification.

The long answer is far more complicated and perhaps more hopeful. Many believe that the door is open for creative advocacy — especially because of some recent Texas court decisions, based on older Supreme Court precedents, regarding discrimination of traditional sex stereotyping. Dicta in other cases suggest that change is bubbling beneath the surface of a (so far) consistent line of decisions that withhold employment rights for LGBTQ employees on a statewide basis. And the legal landscape could change dramatically by early next summer because of a trio of cases now pending before the Supreme Court.

Our Employment Lawyers Can Help You Fight a Wrongful Termination, Workplace Harassment and Employment Discrimination

If you believe that you were fired because you are a gay or transgender or if you suffer discrimination or harassment on the job, don’t give up. The Texas workplace harassment attorneys at Kilgore & Kilgore will fight for your rights. Click the following link to learn more about our representation in employment law cases: Texas Employee Advocacy. For a free review of the facts of your case, use this link to contact us through our website Contact Kilgore & Kilgore.

Federal, Texas and Local Employment Law on Workplace Harassment Today

Civil rights law in Texas is a multi-layered affair, made of federal, state and local precedents. Below is a brief explanation of employment law:

Federal law – Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

But what does sex mean in this context? The question would be hilarious if it didn’t affect the legal rights of hundreds of thousands — maybe a million – workers in Texas. We can assume that, in 1964, Congress never meant to include in this statute sexual orientation or gender identification. At that time, Congress was grappling with race.

The U.S. Department of Justice has taken the position that under Title VII today, sex should still be understood as it was in 1964.The federal Equal Employment Opportunity Commission has taken the opposite stance, stating that discrimination based on sexual orientation and gender identity is prohibited.

The Federal Circuit Courts of Appeal are also split on what sex means. In February 2019, the 5th Circuit, which is the relevant authority for Texas, reaffirmed a 40-year-old holding that Title VII does not prohibit employers from discrimination against employees because of sexual orientation. On the other hand, the same circuit, relying on a 1989 Supreme Court precedent, held that Title VII prohibits sex stereotyping (requiring men and women to conform to their expected gender roles) when it results in workplace favoritism toward one sex over the other. That Texas case involved a situation where a male supervisor harassed his effeminate male subordinate because he did not conform to the supervisor’s gender stereotype of “rough iron workers.” The federal court for the Southern District of Texas, in a non-binding aside in a LGBTQ discrimination case, wrote that federal law prohibiting sex discrimination applies to sexual orientation and gender identity. Sex is complicated, even under federal law.

The Federal Circuit Courts of Appeal are also split on what sex means. In February 2019, the 5th Circuit, which is the relevant authority for Texas, reaffirmed a 40-year-old holding that Title VII does not prohibit employers from discrimination against employees because of sexual orientation. On the other hand, the same circuit, relying on a 1989 Supreme Court precedent, held that Title VII prohibits sex stereotyping (requiring men and women to conform to their expected gender roles) when it results in workplace favoritism toward one sex over the other. That Texas case involved a situation where a male supervisor harassed his effeminate male subordinate because he did not conform to the supervisor’s gender stereotype of “rough iron workers.” The federal court for the Southern District of Texas, in a non-binding aside in a LGBTQ discrimination case, wrote that federal law prohibiting sex discrimination applies to sexual orientation and gender identity. Sex is complicated, even under federal law.

State law – State laws may be more, but never less, protective of employment rights than federal law. Twenty-one states and the District of Columbia have enacted laws that explicitly protect the employment status of gay and transgender workers. Texas has not.

Local law – Local laws may similarly be more protective of LGBTQ and transgender people than states or the federal government. Dallas, Fort Worth and Austin, for example, protect individuals from discrimination on the basis of sexual orientation and gender identity who work in private or city employment. Other localities limit protections to city workers or exclude gender identity as a prohibited basis for discrimination. The penalties for violating these local rules are often relatively minor.

State Law in Texas on Workplace Harassment Today

So, one can conclude that the state law in Texas today for LGBTQ workers is not as good as it could be, not awful, but completely in need of clarity. Enter the Supreme Court.

The Cases before the U.S. Supreme Court

On October 8, 2019 the Supreme Court heard oral arguments in three cases that could clarify the application of Title VII to the employment rights of LGBTQ employees. In the ordinary course of affairs, those decisions would come down in the late spring or early summer of 2020, right in time for election fever. Below is a brief summary of these cases:

Altitude Express Inc. v. Zarda, a New York case, was brought by a skydiving instructor, Donald Zarda, who said he was fired because he was gay. His dismissal followed a complaint from a female customer who voiced concerns about being tightly strapped to Zarda during a tandem dive. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.” The full U.S. Court of Appeals for the 2nd Circuit ruled for him. Sadly, he died in a base-jumping accident before the case came to the Supreme Court.

In Bostock v. Clayton County, Georgia, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII did not protect Bostock’s employment rights on the basis of sexual orientation. Gerald Bostock ran a program that recruited volunteers to advocate for abused and neglected children. He was fired after he joined a gay recreational softball league, from which he also recruited volunteer advocates. Bostock insisted that, contrary to pretexts offered by his employer, he was fired because he is gay. His lawsuit was dismissed because lower courts ruled that Title VII did not cover sexual orientation.

Bostock and Altitude Express are being considered together by the Supreme Court, as bearing on the same narrowly-defined legal question.

In R.G. and G.R. Harris Funeral Homes v. EEOC, the Supreme Court will take up the issue of transgender rights under Title VII. Aimee Stephens, who had presented as a man prior to 2013, was a funeral director at the Harris Funeral Homes. She suffered from gender dysphoria — a mismatch between the sex assigned at birth and a person’s gender identity — and had decided to transition. Before surgical procedures, her doctors suggested that she live for a year as a woman.

She informed her employer that, on her return from vacation, she would present as a woman in appropriate women’s business attire. She was fired before she could return. The EEOC took the case against the funeral home. The Eastern District Court of Michigan held for the funeral home, but the 6th Circuit Court of Appeals reversed that decision, holding that Title VII protects transgender people.

Much ink has been spilled about what the Supreme Court may do with these cases. Some focus on the possible effect of Justice Kennedy’s retirement, or try to read the tea leaves of Justice Kavanaugh’s social attitudes. Some in the audience at oral argument thought that a split decision might possible, especially since the three cases seem to be considered as two. Could the Supreme Court extend Title VII protections to gay workers, but not transgender people? None of this speculation is necessarily useful. But what may generate more light comes from the 2nd Circuit Court of Appeal’s articulation of three possible theories under which an advocate might argue that Title VII should cover gay or transgender employee rights. It is particularly intriguing that some of the 5th Circuit’s thinking about sexual stereotyping seems similar.

Three Theories

In Altitude Express, the 2nd Circuit outlined three rationales under which a gay employee might raise sexual orientation discrimination under Title VII:

• the discrimination is motivated at least in part because of an employee’s sex;
• the discrimination is based on sex stereotyping and assumptions about how each sex can or should be; and
• the discrimination is based on “associational discrimination” and motivated by an employer’s objection to romantic relationships between people of particular sexes.

Will the Supreme Court find any of these theories compelling in any or all of the three cases it has chosen to consider? The first point has a certain literal, textual appeal. If Sue marries Bob, her boss is likely to congratulate her. If Bill marries Bob, Bill may get fired. What is the difference between Sue and Bill? Their sex — the discrimination is motivated by sex. However, as the stricter constructionists may believe, Congress in 1964 probably meant biological sex as determined by physical characteristics. The current administration’s rumored interest in a regulatory redefinition of sex to refer only to DNA evidence could scramble this.

The second point above has some strong Supreme Court heft behind it under Price Waterhouse v. Hopkins. It’s a second line of authority. The 5th Circuit is already mulling this.

The third point above is derivative of the first. The Supreme Court’s decision in Obergefell v. Hodges found that the right to marry is guaranteed to same-sex couples by the Fourteenth Amendment and casts a proverbial “cloak of protection” (or to use Justice Douglas’s language, “a penumbra”) around associational relationships. It is not clear how this third theory might apply to Aimee Stephens. This is concerning because transgender people are among the most vulnerable to employment discrimination, the resulting poverty, ill health and even workplace violence.

Sexual Orientation and the Law – Strategy and Tactics

This lack of certainty makes the disputes about employee rights for transgender and LGBTQ workers difficult. On the other hand, the layered nature of the law means there are different legal avenues to pursue. Whatever news comes down in May or June of next year, there are options. Here is a brief summary:

1. If the Supreme Court decides that Title VII protects the employment rights of gay and transgender employees, then that is the law of the land. State and local authorities may try to limit the meaning of employment rights, but that looks like a losing cause;
2. If the Supreme Court decides to protect gay workers, but not transgender workers, there are still options.
   1. The first option is creative advocacy based on existing Supreme Court cases, especially on the basis of gender stereotype precedents.
   2. The second option is federal legislative action to amend Title VII. The U.S. House of Representatives has passed the Equality Act, which would accomplish this task, but its fate looks dim in the Senate.
   3. The third option is state legislative action to explicitly protect transgender people. Ditto for strengthening protections at the local level.
3. If the Supreme Court decides to protect neither gay nor transgender employees, Texans will be in no worse position than they are today. The remedies are much as outlined above, but with a broader focus.

Curious About Employment Discrimination, Workplace Harassment and Wrongful Termination?

If your employment rights were violated, if you suffered a wrongful termination, and you are gay or transgender, take heart. You are not alone. There are many legal remedies for these forms of abuse. Click this link to read more about our employment law practice Employment Retaliation. Going public about employment rights may help you protect yourself and others. Contact the employment law attorneys at Kilgore & Kilgore for a free evaluation of the facts of your case. Call or contact us by clicking here and sending us a contact request form Contact Kilgore & Kilgore.