Supreme Court Will Determine Whether Sexual Orientation is Protected by Title VII

The U.S. Supreme Court announced today that it will take up the issue of whether employees are protected from workplace discrimination based on sexual orientation and transgender status, thereby resolving inconsistent decisions among the nation’s federal Circuit Courts of Appeals. In recent years, the Second and Seventh Circuit Courts of Appeals have ruled in favor of expanding Title VII’s definition of discrimination to cover sexual orientation, while the Sixth Circuit has recognized discrimination based on gender identity. The Eleventh Circuit has declined to reverse its precedent holding that sexual orientation is not actionable under Title VII, while the Fifth Circuit just last month—and again last week—ruled that Title VII does not prohibit discrimination based on sexual orientation.

The Court will hear three cases:

  • Bostock v. Clayton County, Georgia (U.S. 2019), in which the U.S. District Court for the Northern District of Georgia dismissed the plaintiff’s case, holding that Title VII does not apply to discrimination based on sexual orientation, a ruling that was recently upheld by the Eleventh Circuit Court of Appeals;
  • Altitude Express, Inc., et al. v. Zarda, Melissa, et al. (U.S. 2019), wherein the Second Circuit Court of Appeals reversed the U.S. District Court for the Eastern District of New York and held that Title VII prohibits employers from discriminating against workers based on their sexual orientation; and
  • R.G. & G.R. Harris Funeral Homes v. EEOC, et al. (U.S. 2019), in which the Sixth Circuit Court of Appeals partially reversed the holding of the U.S. District Court for the Eastern District of Michigan to rule in favor of Aimee Stephens, a transgender employee who was identified in employment records as a man and was fired for expressing a desire to dress as a woman in the workplace.

According to SCOTUSblog, this philosophical split exists not only among the federal appellate courts, but between the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC). DOJ, representing the Trump administration, has argued that Title VII does not prohibit discrimination based on sexual orientation or transgender status. EEOC disagrees.

This topic promises to be of great interest to our members, and Employers Council will follow it closely.