As fashion brands tout their workplace inclusivity and diversity initiatives, a key question remains: Does federal law protect LGBTQ employees from discrimination over their sexual orientation or gender identity?
Today, the U.S. Supreme Court will hear oral arguments in three cases that test the scope of protections under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace and housing over traits such as national origin, race and sex.
All three cases involve employees who said they were fired either for being gay or transgender. Two ask the court to consider whether Title VII’s prohibition of discrimination “on the basis of sex” applies to sexual orientation, while the third asks whether it also applies to gender identity.
The cases are another deciding moment in interpreting LGBTQ rights in America, more than four years after the Supreme Court’s ruling in Obergefell v. Hodges legalized same-sex marriage across the country. But their outcomes also have implications for employers, particularly those with strict, gendered dress requirements, or that prescribe codes of conduct or workplace facilities based on gender stereotypes.
“These cases really affect everybody, because if an employer feels that you’re not expressing your gender in a way that’s conventional or palatable to the company’s values, they could take action,” said Charlotte Clymer, press secretary for rapid response at Human Rights Campaign, an LGBTQ civil rights advocacy group.
“It’s not just about a dress code,” she said. “Gender is so woven into our daily language and mannerisms…that this gets into the petty space of policing individual behavior.”
Corporate America has given indications it is warming to the change afoot. This summer, more than 200 companies, including top fashion companies such as Kering Americas Inc., Nike Inc., Tapestry Inc., Levi Strauss & Co. and Under Armour Inc. joined an amicus brief in the cases, stating that they believe federal civil rights protections extend to LGBTQ employees. The Human Rights Campaign was one of the groups that worked to coordinate with companies joining onto the brief.
Clymer said the brands were eager to sign up.
“They understand the critical importance of having workplaces that affirm LGBTQ people,” she said.
The two cases that deal with sexual orientation, Gerald Lynn Bostock v. Clayton County, Georgia and Altitude Express Inc., et al., Petitioners v. Melissa Zarda involve arguments about whether LGBTQ individuals are a protected class under the federal civil rights law.
The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, involves a trans woman, Aimee Stephens, who said she was fired in 2013 from her job as funeral director of a funeral home in Michigan after she came out as transgender.
The funeral home had a rigid dress code prescribing the attire of dark suits, white shirts and a tie for male employees and a “conservative skirt suit or dress” for female employees, according to court documents. The funeral home’s owner fired her after she came out as a transgender woman, saying among other things that he didn’t think she could wear a skirt suit to work.
Strictly gendered dress codes are still a feature of certain lines of work, especially in customer-facing roles in hospitality and retail, though they are increasingly contentious. Depending on how the high court sees it, they could also become legally questionable.
“The argument is that, if the discrimination of trans status is discrimination on the basis of sex, then the prohibition on the basis of trans status has been hiding in plain sight in the Civil Rights Act all along,” said Susan Scafidi, director of Fordham Law School’s Fashion Law Institute.
“And so, if an employer is prescribing uniforms, they would also have to make sure that uniform choices, as a practical matter, are available to all employees,” she said.
But much of this may already be familiar terrain for fashion brands that have already had to acclimate to local laws like New York City’s rules barring strictly gendered-workplace attire.
The city’s Human Rights Commission, a local agency that administers antidiscrimination rules, has long had laws on the books against discrimination on the basis of sexual orientation and gender identity. In recent years, the agency has also issued guidelines and codified rules to clarify how they would apply, saying that employers here should not discriminate against trans and gender non-conforming employees by, for instance, misgendering them or denying them access to single-sex facilities including bathrooms and locker rooms that match their gender identity.
All three cases before the Supreme Court speak to the everyday experiences of LGBTQ employees that show how discrimination might manifest in the workplace, said Dana Sussman, deputy commissioner of policy and intergovernmental affairs at the NYC Commission on Human Rights.
“You can still require that everyone look professional and wear business attire, but to require that men wear X and women wear Y, that reinforces antiquated notions about the appropriate look for them,” she said. “I think it’s really worth questioning why these standards exist in the first place.”