On April 22, 2019, the U.S. Supreme Court announced that it will consider whether federal anti-discrimination law applies to LGBTQ employees, granting judicial review to two (2) sexual orientation discrimination cases and one (1) gender identity discrimination case. The Court is expected to determine whether Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits gender discrimination and other types of discrimination in employment, also covers employees under the LGBTQ umbrella.
One of the sexual orientation discrimination cases that the Court will consider is Altitude Express v. Zarda, a Second Circuit Court of Appeals decision that is currently the law in Connecticut, New York and Vermont. As previously reported in HR Legalist, the Zarda Court concluded that a skydiving instructor who was fired after he disclosed his sexual orientation to a client could sue his former employer under Title VII because “sexual orientation is a function of sex and, by extension, sexual orientation is a subset of sex discrimination.”
Zarda has been consolidated for oral argument with Bostock v. Clayton County, Georgia, an Eleventh Circuit Court of Appeals decision (covering Alabama, Florida, and Georgia) that reached the opposite conclusion. Citing an 11th Circuit decision dating back to 1979, the Court reasoned that the plaintiff, a child welfare-services coordinator and local government employee who was allegedly fired for being gay, had no case because “discharge for homosexuality is not prohibited by Title VII.”
As also reported in HR Legalist, the gender identity discrimination case to be heard by the Court is EEOC v. R.G. & G.R. Harris Funeral Homes, a Sixth Circuit Court of Appeals decision (covering Michigan, Kentucky, Ohio, and Tennessee). That case is notable because it found that the Religious Freedom Restoration Act (RFRA) did not allow a funeral home owner to fire a transgender woman after she disclosed her intention to transition from male to female and dress as a woman at work. While it is groundbreaking that the Supreme Court is considering whether gender identity is a protected category under Title VII, that issue was actually settled in the circuit (in favor of transgender persons) back in 2004.
Interestingly, the Sixth Circuit also concluded that Title VII did not cover sexual orientation discrimination in the 2006 decision of Vickers v. Fairfield Medical Center. While this may seem at odds with the Harris Funeral Homes decision, it is important to remember that sexual orientation and gender identity are distinct concepts. Just like the Sixth Circuit, the Supreme Court could reach opposite conclusions on the protected status of sexual orientation and gender identity.
Hopefully, the Supreme Court will provide needed clarity on this topic, which will be particularly useful for employers with operations in multiple states. Stay tuned to HR Legalist for further updates regarding this and other labor relations and employment law matters. In the meantime, employers with questions about the impact of this decision should contact counsel with expertise in federal, state, and local anti-discrimination law compliance.
