What constitutes discrimination “because of sex”? The Supreme Court is going to decide.

On April 22, 2019, the highest court agreed to hear three cases that collectively address whether sex discrimination, prohibited under Title VII of the Civil Rights Act of 1964, includes discrimination based on sexual orientation and gender identity. The sexual orientation question affects some eight million U.S. workers who have identified as lesbian, gay or bisexual, one-quarter of whom have reported workplace discrimination because of their orientation. The question of whether Title VII prohibits discrimination based on gender identity also should have broad implications.

Employers should consider that many states already prohibit sexual orientation discrimination and have added gender identity and expression to their anti-discrimination statutes as well. Thus, regardless of the Supreme Court’s decision, employers should evaluate whether their anti-discrimination policies are sufficient to cover sexual orientation and gender identity discrimination, and consider whether their training and compliance processes sufficiently address these issues.

Whether sexual orientation or gender identity discrimination constitutes sex discrimination under federal law has been answered differently by various federal courts. The U.S. Court of Appeals for the 6th Circuit had held that discrimination against a worker based on gender identity or because the person is transitioning between genders violates existing federal law outlawing sex stereotyping. This appeal opens the door for the Supreme Court to expand or narrow its previous decision (in Price Waterhouse v. Hopkins (1989)) finding Title VII covered discrimination based on “sex stereotypes.” The issue even has divided federal agencies, with the Equal Employment Opportunity Commission and the Department of Justice taking opposing views.

With its recent announcement, the Supreme Court presumably will resolve these conflicts by agreeing to hear appeals in Bostock v. Clayton County, Georgia, 894 F.3d 1335 (11th Cir. 2018), cert. granted U.S. No. 17-1618 and Altitude Express, Inc. et al. v. Zarda, et al., 855 F.3d 76 (2d Cir. 2017), cert. granted U.S. No. 17-1523, which concern whether Title VII prohibits sexual orientation discrimination, and in R.G. & G.R. Harris Funeral Homes v. EEOC, et al., 884 F.3d 560 (6th Cir. 2018), cert. granted U.S. No. 18-107, which concerns whether Title VII prohibits discrimination based on (1) transgender status or (2) sex stereotyping.

Expect oral arguments on these cases later this year.