Supreme Court Could Extend Title VII Protection to Employees Terminated for Sexual Orientation or Gender Identity

Expanded Title VII Protections Under the Law, Supreme Court Could Extend Title VII Protection to Employees Terminated for Sexual Orientation or Gender Identity

On October 8, 2019, the Supreme Court heard oral arguments in three cases that could reshape the landscape of protections provided by Title VII of the Civil Rights Act of 1964. Title VII provides protection against employment discrimination based upon race, color, religion, sex and national origin. Historically, the term “sex” as used in the statute has been interpreted to protect individuals from discrimination on the basis of gender, but this has not been extended to provide federal protection to transgender individuals, nor has the term been applied to grant protection on the basis of an individual’s sexual orientation. There have been cases in which the Circuit Courts of Appeal have held that the protection afforded by Title VII extends to gender identity or sexual orientation, however these instances are limited, and often address only one category or the other, leaving substantial ambiguity and making this issue ripe for the Supreme Court.

In the absence of federal protection, many states have enacted legislation to protect LGBT individuals from employment discrimination. The protection offered at the state level varies substantially. In 21 states, laws have been enacted to prevent discrimination on the basis of both sexual orientation and gender identity in both public and private employment. This degree of protection is also available in the District of Columbia, Puerto Rico, and Guam. Many other states offer a degree of protection, mixing and matching protection for sexual orientation or gender identity across public and private employment, and creating a patchwork of varying levels of protection for employees across the country.

The three cases heard on Tuesday could reshape this tapestry by providing uniform federal protection. Zarda v. Altitude Express, Inc. on appeal from the Second Circuit Court of Appeals and Bostok v. Clayton County, Georgia, on appeal from the Eleventh Circuit Court of Appeals, have been combined for the purpose of oral argument, as both cases involve a plaintiff terminated for their sexual orientation. Donald Zarda was allegedly fired from his position at a sky diving company when his employer became aware he was a gay man. The Second Circuit Court of Appeals ruled that sexual orientation is a function of sex, and therefore a protected characteristic under Title VII, following from the protections afforded based upon sex. Gerald Bostok was an employee of Clayton County, Georgia, who believes the reason given for his termination was merely a pretext to fire him because he is a gay man. Contrary to the Second Circuit, the Eleventh Circuit ruled that Title VII did not provide protection for discrimination based on sexual orientation. The circuit split in these two cases will be resolved by the Supreme Court to determine whether Title VII in its current form affords protection based upon sexual orientation to employees at the federal level.

The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission is groundbreaking in its role as the first case to put the issue of protections for transgender individuals before the Supreme Court of the United States. Aimee Stephens, a transgender woman, alleges that she was terminated after she informed her employer that she would be transitioning and would return to work wearing the attire the employee handbook allowed for female employees. She received notice of her termination by mail two weeks after informing her supervisor, and she filed a complaint with the EEOC who pursued the claim against the funeral home in the Eastern District of Michigan. The District Court ruled that Title VII did not offer protection; however, the Sixth Circuit Court of Appeals reversed the decision. The Supreme Court granted certiorari to determine whether Title VII prohibits discrimination against transgender individuals either because of gender identity, or because of sex stereotyping.

In hearing these cases, the Supreme Court has the potential to provide all LGBT individuals with a guaranteed federal cause of action to remedy grievances against employers who terminate them for their sexual orientation or gander identity. In doing so, the Court would strengthen the claims of those plaintiffs for whom a state law path to recovery already existed, and more importantly, open a new path for those in states where no remedy existed previously.

If you have inquires on sex discrimination in the workplace or feel that your rights in the workplace have been violated, please contact Borrelli & Associates, P.L.L.C. immediately to schedule a consultation.