Does Federal Law Prohibit Transgender and Sexual Orientation Discrimination? Supreme Court to (finally) Decide

On April 22, 2019, the United States Supreme Court agreed to hear three cases that all center on whether gay and transgender workers are protected from discrimination under Title VII of the Civil Rights Act.  This topic has been hotly debated for some time, but gained momentum about a decade ago due to decisions issued by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency assigned to enforce Title VII and certain other workplace anti-discrimination laws.  In these EEOC administrative decisions, the agency explicitly extended Title VII coverage to sexual orientation and gender identity. It has continued to push this position in a number of court proceedings in recent years.

CIRCUITS SPLIT ON INTERPRETATION OF TITLE VII

The three cases that will be heard by the Supreme Court – Altitude Express v. Zarda; Bostock v. Clayton County, Georgia; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC – pose similar questions regarding the scope of Title VII.  Specifically, the Zarda and Bostock cases ask the Supreme Court to determine whether Title VII’s existing ban on sex discrimination extends to bias against workers based on their sexual orientation.  The Harris case asks the Court to determine whether Title VII bars discrimination against transgender workers based on either their transgender status or the sort of sex-based stereotyping the Supreme Court said was protected under Title VII in a 1989 decision.

While the EEOC made its position regarding the application of Title VII to gay and transgender workers well known, it is often on the opposite side of the federal government when arguing these cases.  This divide within the federal government is paralleled by the split in decisions coming from the circuit courts around the country.  The Zarda case arose out of a claim in which an employee accused his employer of wrongly firing him because he told a client he was gay.  In that case, the Second Circuit adopted the EEOC’s position with regard to protection for gay employees under Title VII.  However in Bostock the Eleventh Circuit held the employee did not have a viable cause of action under Title VII for his claim he was wrongly fired because of his sexual orientation.  Lastly, the Sixth Circuit in the Harris Funeral Homes case decided Title VII does protect transgender employees from discrimination. In this case an employee was fired after telling her boss she would transition to a female gender identity and wanted to dress in women’s clothing at work.  With circuit courts across the country at odds as to the coverage of Title VII to LGBT bias, it is a big deal that the Supreme Court has decided to step in and bring some uniformity to this topic.

THE SUPREME COURT’S DECISION WILL IMPACT BUSINESSES

While the legal aspect of this move by the Supreme Court is important, the implications on employers and businesses are also important.  Depending on the decision by the Supreme Court, businesses and employers may be tasked with updating policies and conducting new trainings on dealing with issues and making employment decisions with regard to employees who identify as gay or transgender.  Further, expanding Title VII to include LGBT bias could result in a number of new discrimination or retaliation claims for those employees did not have an avenue to bring a claim before.  While no changes are immediately required, since the Supreme Court has not yet heard these cases, it is important for employers and businesses to keep a close eye as these cases progress and to be ready for policy and training changes depending on how the Court rules.   

If you have any additional questions with regard to the recent cases accepted by the Supreme Court or how they may affect your business and its existing policies and practices, please contact your Thompson Coe attorney at (651) 389-5000 or at myHRgenius@thompsoncoe.com. You can also find additional information and tips for your company and HR professionals at https://myhrgenius.co.       

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