The U.S. Supreme Court will hear three cases in its fall term to determine whether federal law prohibiting discrimination in the workplace applies to gay and transgender employees. While Title VII of the Civil Rights Act of 1964 (Title VII) prohibits workplace discrimination based on certain protected characteristics, including sex, the high court will resolve a circuit split as to whether the term “sex” applies to sexual orientation and gender identity.
Although the Equal Employment Opportunity Commission (EEOC) issued guidance in 2015 that Title VII prohibits discrimination against lesbian, gay, bisexual and transgender individuals, appellate courts have issued conflicting rulings; this is the first time the Supreme Court will consider the issue. Nonetheless, the high court previously ruled in Price Waterhouse v. Hopkins (1989) that discrimination based on gender stereotypes is unlawful.
Come October, when the court’s next term begins, the justices will take up two sexual orientation cases and a gender identity case to resolve the circuit split. The sexual orientation cases, which concern two employees who claim they were fired because they are gay men, have been consolidated.
The first case, Altitude Express v. Zarda, Donald Zarda, involves skydiving instructor who sued his former employer (and who subsequently died in a base jumping accident in 2014). While his surviving family members continued to pursue the claim, the Second Circuit held in 2018 that discrimination on the basis of sexual orientation is indeed a violation of Title VII.
The second case, Bostock v. Clayton County, Georgia, involves a child welfare services coordinator who claims he was fired in 2013 after his employer learned of his participation in an LGBT softball league. A federal district court in Atlanta dismissed the case, and an 11th Circuit panel affirmed, finding that discrimination based on sexual orientation is not covered by Title VII.
Moreover, 11th Circuit declined to hear the case en banc. One the judges dissented, however, writing that the Price Waterhouse decision “requires the conclusion that Title VII prohibits discrimination against gay and lesbian individuals because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love.”
Finally, the Supreme Court will also consider whether Title VII applies to transgender individuals. In R.G. & G.R. Harris v. EEOC, a funeral home employee claimed she was fired after she came out as transgender. The 6th Circuit found that discrimination “on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”
Currently, local and state laws in New York include sexual orientation and gender identity as protected classes, which means that employees in the state have greater protections than those in states where employment discrimination laws have not been expanded to the LGBT community. Nonetheless, gay and transgender individuals in New York continue to experience discrimination. If you have been the victim of LGBT discrimination, the best way to enforce your rights is to consult an experienced employment law attorney.