SCOTUS: Does Title VII protect LGBT employees from discrimination?

On Oct. 8, 2019, the U.S. Supreme Court has scheduled for oral argument three cases on the issue of whether Title VII of the Civil Rights Act of 1964 protects workers from discrimination and harassment because of their LGBT status. Specifically, does the federal law’s ban on discrimination “because of sex” include within its protection discrimination based on an employee’s identification as gay, lesbian, bisexual or transgender?

We previously published a detailed article explaining the complexity of this debate. As we said, the U.S. Department of Justice, or DOJ, and the Equal Employment Opportunity Commission, or EEOC, the federal agency that enforces federal anti-discrimination in employment laws, come down differently on this issue.

The DOJ says no — that “sex” only means biological gender, but the EEOC has long considered sexual orientation and transgender status part of the protected characteristic of “sex.” Now, the Supreme Court will break the tie between these two major parts of the federal government.

The three cases:

  • Bostock v. Clayton County, Georgia: A Georgia social worker alleged his employer fired him using a false claim of money mismanagement as a pretext for terminating him because he is gay. The U.S. Court of Appeals for the 11th Circuit agreed with the federal trial court that Title VII does not protect against this kind of discrimination. 
  • Altitude Express v. Zarda: A New York skydiving instructor alleged his employer fired him for his sexual orientation. The U.S. Court of Appeals for the 2nd Circuit said that sexual orientation discrimination “is a subset of sex discrimination” under Title VII and the skydiving company asked the Supreme Court to settle the issue. 
  • G. & G.R. Harris Funeral Homes v. EEOC: A Michigan funeral home let a male employee who identifies as a woman go because she wanted to wear women’s clothing at work. The employer terminated her allegedly because this would violate the dress code and for religious reasons. The EEOC sued on the employee’s behalf and the U.S. Court of Appeals for the 6th Circuit agreed with the EEOC. The Supreme Court will decide if transgender status is encompassed within sex discrimination under Title VII and also whether the employer was illegally stereotyping based on how a person should look based on their biological gender.

Advocates for employees will watch this trio of cases with high interest because of the weighty legal rights involved.

(Interestingly for our California readers, state anti-discrimination law protects from employment discrimination that based on, among other things, sex, gender (including pregnancy, breastfeeding, related medical conditions and childbirth), gender identity, gender expression and gender identity. This ban applies to most state employers with at least five employees and for harassment claims, with only one employee.)


24/7 availability


Contact us for a
Free Case Review


Chico's FAS Inc., a Florida women's clothing chain, has become the latest retailer sued in San Francisco for

San Francisco's Gap Inc. will give thousands of California store workers nearly $1.8 million worth of clothing vouchers as compensation.

Law360, New York (August 29, 2012, 2:46 PM ET) -- A California federal judge on Tuesday signed off on a $4 million settlement


How can your employer accommodate you during your pregnancy?

You have the right to have children and a career in California. The government makes sure that employers do not treat you differently if you are pregnant. According to the U.S. Equal Employment Opportunity Commission, the Pregnancy Discrimination Act gives you certain...

Your rights in a sexual harassment case

Sexual harassment is in the news every day. Unfortunately for many workers in the San Francisco area, it is something they face on the job. The law protects you. You do not have to tolerate behavior that makes you feel uncomfortable or threatened. Your employer must...

Handling age discrimination in the tech industry

Can you have an age discrimination case if you are not yet a senior citizen? While you may not consider yourself to be on the older side of the workforce, federal employee protection against age discrimination starts at age 40. Studies show that this problem is...

Whistleblowers may be entitled to large monetary awards

Bay Area employees may have found themselves in a situation in the workplace that warrants speaking out about problems. Sometimes called whistleblowers, employees who point out flaws in a company's policies or procedures may be subject to unfair treatment. Recently, a...

Does your employer’s dress code policy discriminate against you?

When you think about discrimination in the workplace, you probably think about denial of a promotion, a good assignment or a better schedule based on your race, religion, gender or some other protected factor. However, there are hidden sources of discrimination that...

CELA - California Employment Lawyers Association
The Bar Association of San Francisco - BASF Member 2013
American Association for Justice
NELA National Employment Lawyers Association
TLPJ Trial Lawyers for Public Justice
The American Trial Lawyers Association