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.)

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