Will Discrimination Based on LGBTQ Status be Explicitly Prohibited Under Federal Law?

On October 8, 2019, the U.S. Supreme Court heard oral arguments in a group of cases to determine whether Title VII, the federal employment anti-discrimination law, protects applicants and employees from discrimination based on their sexual orientation and transgender status. In R.G. & G.R. Harris Funeral Homes v. EEOC (U.S. 2019), a six-year employee alleged she was fired after informing her employer she was transitioning from male to female. In both Altitude Express v. Zarda (U.S. 2019) and Bostock v. Clayton County (U.S. 2019), two male employees contend they were fired because they were gay. A hot topic that was discussed during oral arguments was whether employees could use the bathroom that corresponds with the gender that was not assigned at their birth.

Currently under Title VII, discrimination based on sexual orientation, gender identity and expression, or transgender status is not explicitly prohibited. However, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, has consistently argued that such discrimination is discrimination on the basis of sex. Moreover, the EEOC accepts charges of discrimination where the charging party alleges discrimination based on LGBTQ status.

How did this issue make its way to the U.S. Supreme Court? Well, there has been a split among several federal appeals courts; that is, some parts of the country have concluded that discrimination based on LGBTQ status is protected under Title VII while others have concluded that it is not.

Given the multitude of consequences, employers should not tolerate discrimination on the basis of LGBTQ status. Employers Council will be closely following this topic and will notify our members as soon as a decision is published. In the meantime, if you have any questions, please contact Employers Council.