On October 8, 2019, the United States Supreme Court heard two oral arguments in three highly anticipated cases centered on the controversial issue of whether sexual orientation and transgender status fall within the protected class of “sex” under Title VII, a 1964 civil rights law protecting employees against discrimination. The first argument consolidated two cases with gay male plaintiffs who alleged they were fired because of their sexual orientation, Altitude Express, Inc. v. Zarda and Bostock v. Clayton County. The second argument was based on a Title VII discrimination case presented by a transgender plaintiff, Harris Funeral Homes v. EEOC.
Background
Altitude Express, Inc. v. Zarda was originally brought by Donald Zarda, a skydiving instructor who alleged he was fired in violation of Title VII and New York state law by his former employer, Altitude Express, on the basis of his sexual orientation after he told a customer he was gay. The company maintained that Zarda’s behavior in inappropriately touching a customer during a base jump led to his termination, not his sexual orientation. After losing at the trial level (the district court found that Title VII does not protect against discrimination based on sexual orientation), Zarda appealed his case to the Second Circuit in 2015. The Second Circuit initially affirmed the trial court’s decision. However, the court decided to reconsider the case upon Plaintiff-Appellants’ request for an en banc review in May 2017. Relying largely on recent Supreme Court holdings, the Second Circuit ultimately broke from its own precedent and held that anti-gay discrimination in the workplace is prohibited under Title VII. Altitude Express appealed to the Supreme Court. Click HERE to read more about the Second Circuit’s Zarda decision.
Similarly, Bostock v. Clayton County was brought by Gerald Bostock, a gay man who worked for Clayton County, Georgia as a child welfare services coordinator. In 2013, Bostock was terminated allegedly for “conduct unbecoming of its employees” shortly after he received criticism for participating in a gay recreational softball league. Bostock subsequently filed a charge of discrimination with the EEOC, followed by a lawsuit against the county in 2016 alleging discrimination based on sexual orientation under Title VII. The district court dismissed the lawsuit for failure to state a claim, finding that Bostock’s Title VII did not prohibit discrimination on the basis of sexual orientation. Bostock appealed, and the Eleventh Circuit affirmed the district court’s decision.
Aimee Stephens, the plaintiff in Harris Funeral Homes v. EEOC, is a transgender female who worked as a funeral director at R.G. and G.R. Harris Funeral Homes. Stephens was fired in 2013 after informing the funeral home’s owner that she was a transgender woman and the EEOC subsequently sued on her behalf. The Sixth Circuit ultimately ruled that Stephens’ employer engaged in unlawful sex discrimination when it fired her because discrimination against a transgender employee is discrimination on the basis of non-conformity with stereotypical gender norms and thus constitutes discrimination on the basis of sex under Title VII. The employer appealed to the Supreme Court.
The Court’s decisions as to whether Title VII prohibits discrimination against the LGBTQ employees in these cases are expected in mid-2020.
What does this mean for employers?
For many employers, the Supreme Court’s decision will not have a tremendous impact on their operations because they already conduct business in states or localities that explicitly prohibit discrimination on the basis of sexual orientation, gender identity or gender expression. For employers who are not currently subject to such laws, a decision by the Supreme Court siding with the Second, Sixth and other Circuits that have held that Title VII protection includes gender identity and sexual orientation and that discrimination against LGBTQ employees therefore constitutes sex discrimination prohibited by Title VII, will require them to take action to update their policies and training. Employers that do not already prohibit discrimination on the basis of sexual orientation, gender identity or gender expression will need to amend their internal discrimination policies to include LGBTQ status as a protected class, and should ensure their employees are trained on the updated policies and the implications of non-compliance. On the other hand, if the Court ultimately holds that LGBTQ employees are not protected by Title VII—an outcome many anticipate given the Court’s current conservative-leaning majority—employers can maintain the status quo, but should closely monitor this issue at the federal, state and local levels as it continues to unfold. Importantly, employers in jurisdictions subject to state and/or local laws that already bar employment discrimination on the basis of an employee’s LGBTQ status must remain compliant with such laws and ensure that their existing anti-discrimination and anti-harassment policies are consistent with same.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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