Hogan Lovells

Following months of speculation, the Supreme Court announced yesterday that it would decide whether the prohibition in Title VII against discrimination “because of sex” encompasses discrimination against gay and transgender workers.

The Supreme Court agreed to hear two cases, one from the Second Circuit and another from the Eleventh Circuit, that reached opposing conclusions on whether gay workers are protected by Title VII.  In Altitude Express Inc. v. Zarda, No. 17-1623, a case brought by a skydiving instructor who was fired after disclosing his sexual orientation at work, the Second Circuit Court of Appeals concluded en banc that sexual orientation discrimination is motivated at least in part by sex and therefore unlawful.   The Eleventh Circuit ruled in Bostock v. Clayton County, Georgia, No. 17-1618, which was brought by a man who was discharged after it became known that he participated in a gay recreational softball league, that firing an employee based on sexual orientation is not prohibited by Title VII.   Altitude Express and Bostock illustrate a broader conflict in the federal courts and agencies.  For example, both the Seventh Circuit and the EEOC have also ruled that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII, and lower courts throughout the country are split on the question.  Altitude Express and Bostock have been consolidated by the Supreme Court.

In another case, the Supreme Court announced that it will decide whether Title VII prohibits discrimination against transgender people.  In R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107, a transitioning transgender woman was fired after she announced that she would start wearing women’s clothes at work.  The Sixth Circuit held in favor of the employee, ruling that “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”

These cases are likely to generate a lot of commentary in the coming months.  They will be heard and decided during the next term.

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