Supreme Court to Decide if Title VII Covers LGBT Discrimination

By Douglas Lipsky

The United States Supreme Court has agreed to decide whether federal law prohibiting discrimination in the workplace applies to gay and transgender employees. Under Title VII of the Civil Rights Act of 1964, workplace discrimination based on certain protected characteristics, including sex, is prohibited. The overarching issue is whether the term “sex” under Title VII applies to sexual orientation and gender identity.

The Backdrop

While the Equal Employment Opportunity Commission (EEOC) ruled in 2015 that Title VII prohibits discrimination against lesbian, gay, bisexual and transgender individuals, this is the first time the Supreme Court will consider the issue when it begins its next term in October.

It is worth noting, however, that the high court previously ruled that gender discrimination based on gender stereotypes is unlawful (Price Waterhouse v. Hopkins, 1989). In any event, the court has agreed to take up two sexual orientation cases and a gender identity case in the fall term to resolve a circuit split. The sexual orientation cases, which have been consolidated, concern two employees who claimed they were fired for being gay.

In one case, Altitude Express v. Zarda, Donald Zarda, a skydiving instructor, sued his former employer, alleging that he was fired because of his sexual orientation. Although the plaintiff died in a base jumping accident in 2014, surviving family members continued to pursue the case. In 2018, the U.S. Court of Appeals for the Second Circuit found that discrimination on the basis of sexual orientation violates Title VII.

In the second case, Bostock v. Clayton County, Georgia, a child welfare services coordinator sued the county for firing him in 2013 after learning of his participation in an LGBT softball league. The case was dismissed by a federal district court in Atlanta. That ruling was subsequently affirmed by a panel of the 11th U.S. Circuit Court of Appeals, which found that discrimination based on sexual orientation is not protected by Title VII.

Although the 11th Circuit declined to hear the case en banc, one of the judges dissented, writing that the Price Waterhouse decision “requires the conclusion that Title VII prohibits discrimination against gay and lesbian individuals because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love.”
Finally, the Supreme Court will also hear R.G. & G.R. Harris v. EEOC, a case involving Aimee Stepehens, a funeral home employee who claimed she was fired after she came out as transgender. The 6th Circuit Court of Appeals ruled found that discrimination “on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

The Bottom Line

While local and state laws in New York include sexual orientation and gender identity as protected classes, it remains to be seen whether the Supreme Court will extend Title VII protections to the LGBT community. In the meantime, Congressional lawmakers are also reconsidering the issue after failing to reach a consensus on two previous occasions.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.