On Monday April 22, 2019, the Supreme Court of the United States has agreed to hear three cases which seek rulings on whether sexual orientation, transgender status, and transitioning status are protected under Title VII of the Civil Rights Act after years of courts and government agencies taking conflicting positions on this landmark issue. The Supreme Court will likely issue decisions on these hot button cases in 2020 at the beginning of the next presidential election race.
Title VII makes it unlawful for an employer to discriminate against any individual “because of” the individual’s sex. While it is understood that the phrase “because of sex” includes gender stereotyping, the law remains in flux as to whether discrimination “because of sex” includes discrimination based on sexual orientation, transgender status, and transitioning status.
Numerous courts and federal government agencies have taken opposing stances on this issue. For example, the Department of Justice (“DOJ”) has filed an amicus brief arguing that discrimination based on sexual orientation is not encompassed as discrimination “because of sex” under Title VII. The DOJ’s brief directly conflicts with the Equal Employment Opportunity Commission’s (“EEOC”) stance, as articulated in an amicus brief, which contends that sexual orientation falls squarely within Title VII’s prohibition on the basis of sex. The EEOC argued in its amicus brief “an employer cannot discriminate against an employee based on that employee’s sexual orientation without taking the employee’s sex into account – precisely what Title VII forbids.”
The three cases that the Supreme Court agreed to hear, R.G. & G.R., Zarda, and Bostock, will collectively shape the future of LGBTQ rights in the workforce. In R.G. & G.R., the Sixth Circuit held that discrimination on the basis of transgender and transitioning status violated Title VII. In Zarda, the Second Circuit held that the plaintiff was entitled to bring a Title VII claim for discrimination based on sexual orientation. In contrast, in Bostock, the Eleventh Circuit held that a plaintiff failed to state a claim for sexual orientation discrimination under Title VII and couched its ruling in prior Eleventh Circuit precedent.
Such circuit splits have become all but commonplace in today’s legal landscape. Some federal courts have found that sexual orientation is a protected class under Title VII as a proxy for “sex” or as a form of gender stereotyping. For example, the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana that Title VII’s prohibition on discrimination because of sex includes sexual orientation because “the common-sense reality…[is that it is] actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Other federal courts have had contrary findings. For instance, the Eleventh Circuit in Evans v. Georgia Regional Hospital adhered to a strict textual analysis of Title VII and concluded that sexual orientation is not protected because it is not one of the specifically enumerated protected classes in Title VII. The Fifth Circuit in O’Daniel v. Industrial Service Solutions likewise explained “Title VII in plain terms does not cover ‘sexual orientation.’”
The Supreme Court’s guidance on these issues is significant. Their decision will provide long-awaited clarity for courts, agencies, employers, and employees regarding the parameters of LGBTQ rights in the workforce. Additionally, the Supreme Court’s ruling will likely reshape employment policies and training procedures to ensure compliance and mitigate potential liability. While awaiting the Supreme Court’s decisions on these monumental issues, employers should remain cognizant of local anti-discrimination laws because Title VII’s enumerated protections are a floor and not a ceiling, as states are free to grant additional protections beyond federal laws. Various local county and municipal jurisdictions have done just that and now explicitly include sexual orientation, gender identity, and gender expression as protected categories.
Originally published in the Cornell Journal of Law & Public Policy: Deedee Bitran, Supreme Court to Hear Landmark LGBTQ Cases, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Apr. 24, 2019), Cornell Journal of Law & Public Policy, http://jlpp.org/blogzine/supreme-court-to-hear-landmark-lgbtq-cases/.