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Supreme Court to Decide if Title VII Prohibits Discrimination Based On Sexual Orientation, Transgender Status, and Gender Identity

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April 22, 2019

By Sally Scott, Mike Warner, Jackie Wernz

The Supreme Court announced today that it will address whether federal civil rights laws protect gay, lesbian, and transgender employees from discrimination. The Court will hear three cases—from New York, Georgia, and Michigan—addressing the scope of Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on “sex,” and courts have differed as to whether that term is broad enough to encompass sexual orientation, transgender status, or gender identity. As commentators have recognized, these will almost certainly be blockbuster decisions, with impacts both for the employment realm and the larger political landscape, generally. The decisions likely will have ripple effects in the world of education, as well, because of similarities between Title VII and Title IX of the Civil Rights Act of 1972, which prohibits discrimination based on sex in education.

Sexual Orientation Cases

The circuit courts of appeals long held that Title VII does not prohibit sexual orientation discrimination or discrimination based on transgender status or gender identity. As we explained in a prior alert, the tide began to change in 2017 when the Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) held, in Hively v. Ivy Tech Community College of Indiana, that VII prohibits employment discrimination based on sexual orientation.

The Second Circuit (which covers Connecticut, New York, and Vermont) agreed with the Seventh Circuit the next year, in Zarda v. Altitude Express, Inc. In Zarda, a skydiving company terminated an employee, Donald Zarda, after a customer complained that Zarda improperly touched her during a tandem skydive. Zarda reportedly had told the customer that he was gay before the jump. When he was discharged he filed suit, claiming he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” On February 26, 2018, the Second Circuit overturned its longstanding interpretation of Title VII as excluding sexual orientation discrimination. The court said that such discrimination is motivated, at least in part, by sex, and thus is a subset of sex discrimination for purposes of Title VII.

Only a few months later, the Eleventh Circuit (which covers Alabama, Florida, and Georgia) reached the opposite conclusion in Bostock v. Clayton County, Georgia, finding that Title VII does not reach discrimination on the basis of sexual orientation. Bostock was a Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County, Georgia. He was openly gay, but claims that after he became involved in a gay softball league and his sexual orientation was openly criticized by someone with significant influence in the Clayton County court system, he was wrongly accused of misconduct regarding program funds and fired. On May 10, 2018, the Eleventh Circuit issued its decision, reaffirming its prior interpretation of Title VII as not applying to sexual orientation discrimination. The court thus dismissed Bostock’s case, finding he could not raise a valid claim under Title VII.

Perhaps because of the now clear split among the circuit courts of appeals on this issue, the Supreme Court decided to hear the Zarda and Bosock cases, which it consolidated into one appeal.

Transgender and Gender Identity Cases

At the same time, the Court announced it will hear a third case, R.G. & G.R. Harris Funeral Homes v. EEOC, which will address the applicability of Title VII to claims of discrimination by transgender employees. That case, from the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee), arose when a transgender female, Aimee Stephens, was fired by a small Michigan funeral home after she notified the owner that she planned to transition to a female. According to the funeral home owner, a devout Christian, he fired Stephens because “he was no longer going to represent himself as a man” and “wanted to dress as a woman.” If Title VII prohibits employment discrimination based on transgender status, the termination likely would violate the law. When asked to review the case, the Sixth Circuit held that the employer violated Title VII by firing Stephens because of sex stereotypes about her appearance and conduct. The Sixth Circuit then went on to rule that discrimination based on Stephens’s transgender status is also a form of sex discrimination that violates Title VII. This decision was in line with decisions by the Seventh, Ninth, and Eleventh Circuits, but conflicts with the decision by the Tenth Circuit (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) that discrimination on the basis of transgender status is not a violation of Title VII.

We will continue to follow and provide you updates on these cases. For more information on the implications of these matters, contact Sally Scott, Mike Warner, Jackie Wernz or any other Franczek attorney.

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