Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. On October 8, 2019, the U.S. Supreme Court heard arguments in a pair of landmark cases about whether Title VII’s prohibition of discrimination on the basis of sex includes protections against discrimination on the basis of gender identity and sexual orientation. The Supreme Court’s rulings in these cases are expected to resolve a current split between various Circuit Courts of Appeal on these issues.

In the first case, the Supreme Court examined circumstances presented in two cases consolidated for review: Bostock v. Clayton County and Altitude Express v. Zarda.  In Altitude Express, Plaintiff Donald Zarda, an instructor at a New York skydiving company, alleged that he was fired from his job in 2010 because he is gay. The United States District Court for the Eastern District of New York and the United States Court of Appeals for the Second Circuit both held that Title VII offered Zarda no recourse. However, in its en banc review of the case, the Second Circuit reversed its previous ruling and held that Title VII protects employees from discrimination on the basis of sexual orientation. 

In Bostock, Plaintiff Gerald Bostock, a social worker in Georgia, alleged that he was fired from his job in 2013 because he is gay. Both the Northern District of Georgia and the Eleventh Circuit held that Title VII does not protect employees from discrimination on the basis of sexual orientation. 

In the second case, the Supreme Court heard arguments in R.G. & G.R. Harris Funeral Homes v. EEOC. In this case, Plaintiff Aimee Stephens, a funeral director in Michigan, alleged that she was fired from her job because she is transgender. The Eastern District of Michigan held that Title VII offered no protection to Stephens. The Sixth Circuit reversed and held that Title VII’s protection against discrimination based on sex includes discrimination based on gender identity. The Sixth Circuit based its ruling in part on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a landmark Supreme Court decision which held that “sex stereotyping” is a form of impermissible discrimination based on sex under Title VII. 

The Arguments

The plaintiffs in Bostock and Altitude Express argued that Title VII’s prohibition of discrimination on the basis of sex should include discrimination based on sexual orientation because such discrimination necessarily takes sex into account and, further, is a form of prohibited sex stereotyping under Price Waterhouse. In R.G. & G.R. Harris Funeral Homes, the plaintiff argued that Title VII should prohibit discrimination on the basis of gender identity because (1) she was treated differently because of the sex she was assigned at birth, and (2) such discrimination is an impermissible form of sex stereotyping under Price Waterhouse.  

During oral arguments, the Supreme Court Justices asked questions and expressed concerns regarding the policy and social implications of expanding Title VII’s protections, potential religious objections, Congress’ original intent in passing Title VII, and whether these questions are properly within the purview of the judiciary or the legislature. Many commentators have speculated that Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs’ arguments but also expressed concern about whether these issues were best left to Congress, may be the swing vote in these landmark cases.

Impact

Currently, Circuit Courts are split as to Title VII’s application to discrimination based on gender identity and sexual orientation. Lower courts and advocates have struggled for years in deciding how to apply Title VII to discrimination based on sexual orientation and gender identity. The Equal Employment Opportunity Commission interprets Title VII to prohibit such discrimination, regardless of state or local laws. The Department of Justice formerly interpreted Title VII to prohibit such discrimination, but reversed course in 2017 following the change in presidential administrations.

The Supreme Court’s decision is expected in June of 2020, during the height of the presidential election campaign. The decision is expected to have a nationwide impact on the landscape of employment discrimination law. Roughly half of the states do not have statutes in place protecting LGBT individuals against workplace discrimination based on gender identity or sexual orientation. If the Supreme Court decides that a federal right of action exists under Title VII for such discrimination, employers across the country, and especially in states where there are not existing protections for LGBT individuals, must become aware of the expanded scope of Title VII’s protections and alter their policies accordingly.

Alternatively, if the Supreme Court finds that Title VII does not prohibit discrimination on the basis of gender identity or sexual orientation, or that these questions are more appropriate for Congress to decide, then the status quo will not change. In that case, it would be up to Congress or individual states to act to adopt protections for LGBT individuals.