On April 22, 2019, the Supreme Court announced that it would take up three cases that address the scope of “sex discrimination” under Title VII. Supreme Court review seemed inevitable given the growing divide regarding how Title VII’s prohibition of “sex discrimination” should apply to LGBT workers.

In what will be one of the most highly anticipated Supreme Court decisions in recent years, the Supreme Court will review two cases that will address whether Title VII prohibits discrimination based on sexual orientation (Altitude Express, Inc. v. Zarda, U.S., No. 17-1623 and Bostock v. Clayton County, Georgia, U.S., No. 17-1623) and one case that will address whether Title VII prohibits discrimination based on gender identity (R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC, U.S., No. 18-107).

Historically, courts have held that Title VII prohibits discrimination based on “sex stereotypes” but not on sexual orientation or gender identity. In April 2017, however, the Seventh Circuit was the first circuit to hold that Title VII prohibits discrimination based on sexual orientation in Hively v. Ivy Tech Community College. Later that year, in Evans v. Georgia Regional Hospital, the Eleventh Circuit declined to overturn its precedent, holding that sex discrimination under Title VII does not include discrimination based on sexual orientation. The employee in Evans sought Supreme Court review, but in December 2017, the Supreme Court turned down the opportunity to address the issue.

Since December 2017, however, the divide has deepened, prompting the Supreme Court to take up the issue. In February 2018, the Second Circuit joined the Seventh Circuit and ruled that Title VII prohibits discrimination based on sexual orientation. Just one month later, the Sixth Circuit held that Title VII prohibits discrimination based on gender identity.

There is also disagreement amongst federal agencies, and the Equal Employment Opportunity Commission (“EEOC”) and the Department of Justice (“DOJ”) are currently at odds on this issue. Since 2012, the EEOC has taken the position that Title VII prohibits discrimination based on sexual orientation. In 2017, however, the DOJ publically opposed this position; and the two agencies even argued against each other at the Second Circuit Court of Appeals in Zarda v. Altitude Express.

The Supreme Court will hear these cases in the upcoming fall term, which starts in October, and a decision is expected in early 2020. The Supreme Court’s decision could significantly impact what constitutes “sex discrimination” under Title VII, but employers must still comply with state discrimination laws. Many states, including New York state, already have discrimination laws that explicitly include sexual orientation and gender identity as protected traits.

We have issued previous Legal Alerts on Title VII sexual orientation discrimination, including the Zarda decision.