The U.S. Supreme Court’s next term will likely have a significant impact on employers. On April 22, 2019, the Court announced that it is taking up the hot-button issue of whether federal laws that ban discrimination in employment based on sex also prohibit discrimination based on sexual orientation or transgender status. Next term, the Supreme Court will hear arguments on two cases concerning sexual discrimination based on sexual orientation, Altitude v. Zarda and Bostock v. Clayton, and a third case dealing with discrimination based on transgender status, R.G. and G.R v. EEOC.
The issue of whether Title VII protections also protect LGBT status is an open question. Since the U.S. Supreme Court’s 1989 decision of Price Waterhouse v. Hopkins, the law of the land has been that employers may not discriminate against employees for failing to conform to stereotypical behavior of a man or woman. However, there are differing opinions whether Title VII protects LGBT status. The Equal Employment Opportunity Commission (“EEOC”) has long interpreted Title VII of the Civil Rights Act’s prohibition on gender discrimination to include discrimination based on sexual orientation and gender identification. However, the U.S. Department of Justice under the Trump administration has concluded that Title VII does not provide such protections. As with administrative agencies, there is also a difference of opinion among the lower courts. The Supreme Court has taken up these three cases to resolve a split among lower courts concerning whether Title VII protections extend to LGBT individuals.
In the consolidated cases of Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, the issue is whether federal laws banning employment discrimination also protect gay and lesbian employees. In Altitude Express, the employer skydiving company petitioned the Supreme Court for review after the U.S. Court of Appeals for the Second Circuit found that Title VII applies to discrimination based on sexual orientation because it “is a subset of sex discrimination.” In Altitude Express, a former skydiving instructor, Donald Zarda, filed suit after his employment was terminated, alleging he was discriminated because he was gay in violation of Title VII of the Civil Rights Act of 1964. As a skydiving instructor, Zarda and students would be harnessed close together for instruction while skydiving. In an apparent attempt to put a student at ease, Zarda told a female student he was “100-percent gay.” After the student’s boyfriend called to complain to management, Zarda’s employment was terminated. Zarda filed suit, claiming that he was unlawfully terminated because he was gay. The district court dismissed Zarda’s sex discrimination claim, finding that Title VII protections do not include claims alleging discrimination based on sexual orientation. The U.S. Court of Appeals for the Second Circuit reversed, determining that Title VII prohibits discrimination based on sexual orientation.
In the related case of Bostock, the U.S. Court of Appeals for the Eleventh Circuit (which overseas federal courts in Alabama, Georgia, and Florida) reached a different conclusion and found that Title VII does not prohibit discrimination based on sexual orientation. In Bostock, Gerald Bostock filed suit after his employment was terminated as a child-welfare-services coordinator in Clayton County, Georgia, alleging that he was terminated because he is gay. Bostock claims that after the county found out that he was gay, it falsely accused him of mismanaging public funds and terminated his employment in violation of Title VII. Both the district court and the U.S. Court of Appeals for the Eleventh Circuit found that Title VII does not apply to discrimination based on sexual orientation. The Eleventh Circuit reached the same conclusion as a recent decision by the U.S. Court of Appeals for the Fifth Circuit (which overseas federal courts in Mississippi, Louisiana and Texas), as we recently discussed here.
Another case dealing with LGBT protections that the Supreme Court has agreed to decide next term is R.G. & G.R. Harris Funeral Homes v. EEOC, a case that we have previously discussed here. This case has not been consolidated with the above cases, as it deals with the distinct issue of whether Title VII’s protections apply to transgender employees. In R.G., the EEOC filed suit on behalf of a former employee of a funeral home, Amiee Stephens. When Stephens was hired by the funeral home, Stephens presented as male. However, after six years of employment, Stephens identified as female and asked to dress as a female at work. The funeral home owner terminated Stephens’ employment because the owner thought that allowing Stephens to dress as a female would violate the funeral home’s dress code and potentially alienate clients. In addition, the funeral home owner described himself as a devout Christian and thought he would be “violating God’s commands” by allowing Stephens to dress as a female.
The district court dismissed Stephens’ claims, finding that neither gender identity nor transgender status are protected classes under Title VII. The U.S. Court of Appeals for the Sixth Circuit (which oversees federal courts in Tennessee, as well as Kentucky, Ohio, and Michigan) reversed the district court, ruling that Title’s VII protections from discrimination based on sex includes discrimination based on transgender status. The Sixth Circuit relied on the seminal decision of Price Waterhouse v. Hopkins , which found that Title VII protections extend to employees who do not conform to stereotypical behavior of a man or woman.
The U.S. Supreme Court’s rulings in these cases will undoubtedly have a significant impact on employers and employees alike. With the recent changes on the U.S. Supreme Court, there is considerable uncertainty how the Court will rule. Proactive employers should consider reviewing company policies, train their workers, and be prepared, if necessary, to implement immediate changes to include prohibitions on discrimination and harassment based on sexual orientation or transgender status. Also keep in mind that, apart from federal law, many states have broader laws that explicitly prohibit discrimination/harassment on this basis.