On 22 April 2019, the Supreme Court of the United States (‘SCOTUS’) granted certiorari (judicial review) in three cases involving the question of whether gay and transgender workers are protected from discrimination by Title VII of the Civil Rights Act of 1964. The three cases SCOTUS agreed to hear each involve the question of whether Title VII’s protection against discrimination based on ‘sex’ extends to workers who are discriminated against based on their sexual orientation (Altitude Express v. Zarda and Bostock v. Clayton County, Georgia) or their gender identity/transgender status (R.G. & G.R. Funeral Homes Inc. v. EEOC).
Title VII does not explicitly prohibit sexual orientation, gender identity or transgender status discrimination; rather, it prohibits ‘sex’ discrimination. Historically, the federal courts embraced a narrow reading of ‘sex’ and rejected LGBTQ workers’ claims unless they could show discrimination based on improper sex stereotyping as permitted by Price Waterhouse v. Hopkins, a case decided by SCOTUS in 1989. Just over 10 years ago, the EEOC, however, took the position that discrimination based on ‘sex’ includes discrimination based on a worker’s sexual orientation or gender identity. Moreover, with more and more administrative decisions issued recognising LGBTQ protections under Title VII, several federal courts of appeals have reversed themselves, holding that such classes are protected by Title VII. This has resulted in a split in the circuits between those that maintain a narrow reading of Title VII and those that have extended Title VII’s protections to LGBTQ workers. With states and local governments also passing their own laws prohibiting discrimination against LGBTQ workers, national employers have been left with a jumble of laws that often are difficult to navigate.
The three cases certified by SCOTUS present the perfect opportunity for the Court to resolve this question. Zarda was brought by a now-deceased employee of Altitude Express whose employment was terminated after telling a customer that he was gay. The Second Circuit, sitting en banc (with all the judges present rather than a panel), held that Title VII’s proscription of discrimination on the basis of ‘sex’ included discrimination based on sexual orientation because sexual orientation discrimination is ‘motivated, at least in part, by sex and is thus a subset of sex discrimination.’ Given that one cannot define a person’s sexual orientation without identifying his or her sex, the court held that sexual orientation is a ‘function of sex.’
Bostock was brought by a former child welfare services coordinator in Clayton County, Georgia whose employment was terminated after his employer learned he was gay. The district court dismissed the complaint under Eleventh Circuit precedent, as stated in Evans v. Ga. Reg’l Hospital that Title VII does not extend to sexual orientation discrimination. The Eleventh Circuit affirmed this ruling.
Finally, in R.G. & G.R. Funeral Homes, the Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Aimee Stephens, a funeral director, alleging her employment was terminated by her funeral home employer after revealing she would be transitioning to female. The Sixth Circuit ruled in favor of the EEOC and Ms. Stephens, holding, inter alia, that Title VII protects transgender employees from discrimination. Since the funeral home’s appeal of this case, the Department of Justice has filed a brief arguing that the definition of ‘sex’ does not extend to ‘gender identity.’
SCOTUS’s decisions on these three cases will bring welcome clarity on the scope of Title VII’s protection of LGBTQ workers. As we await these decisions, employers should continue to follow the laws in the jurisdictions, states and locations in which they operate and should have clear policies regarding LGBTQ rights in the workplace.
