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United States Supreme Court Will Address Whether Title VII Prohibits Discrimination Based on Sexual Orientation and Gender Identity

on Monday, 22 July 2019 in Labor & Employment Law Update: Sarah M. Huyck, Editor

Federal courts are split on the issue of whether Title VII’s prohibition on sex discrimination encompasses sexual orientation and gender identity. In October of this year, the United States Supreme Court will hear three cases concerning how broadly sex discrimination should be interpreted in employment discrimination matters.

The Court will hear two cases with respect to sexual orientation, Zarda v. Altitude Express and Bostock v. Clayton Count. In Zarda v. Altitude Express, the Second Circuit Court of Appeals held that Title VII prohibits discrimination on the basis of sexual orientation. The Second Circuit reasoned that “because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex” and, as such, firing an employee because he or she is gay is a form of sex discrimination. Conversely, in Bostock v. Clayton County, the Eleventh Circuit Court of Appeals held that a sexual orientation discrimination claim may not be brought under Title VII, concluding, “if Congress is so inclined, it can amend the statute to provide a claim for sexual orientation discrimination.”

The Court will also consider whether discrimination based on an individual’s transgender status is prohibited by Title VII. In EEOC v. R.G. & G.R. Harris Funeral Homes, the U.S. Equal Employment Opportunity Commission (“EEOC”) brought a claim against a funeral home when it terminated its employee two weeks after the employee announced her plans to transition from male to female. The Sixth Circuit Court of Appeals concluded that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” which “necessarily implicates Title VII’s proscriptions against sex stereotyping.”

While federal courts have taken divergent approaches, the EEOC has broadly interpreted Title VII’s prohibition of sex discrimination to forbid employment discrimination based on gender identity or sexual orientation. Examples of claims that the EEOC views as unlawful sex discrimination include: failing to hire an applicant because she is a transgender woman, firing an employee because he or she is planning or has made a gender transition, denying an employee access to a restroom corresponding to that employee’s gender identity, and denying an employee a promotion because of his or her sexual orientation. The EEOC has seen a significant increase in LGBT-based sex discrimination charges in recent years. In FY 2013, the EEOC received approximately 800 LGBT-based sex discrimination charges. In FY 2018, the EEOC received over 1,800 LGBT-based sex discrimination charges.

Assuming the Court addresses these issues head-on, employers may soon have additional clarity regarding how expansive Title VII’s definition of “sex” is. While the Court will review the cases in the next term starting in October, it could be several months the Court issues its decisions.

Sarah Gorsche, Summer Associate
Kara E. Stockdale

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