Leslie A. Farber
Supreme Court Set to Hear LGBTQ Workplace Discrimination Cases
Does the Civil Rights Act of 1964 protect #LGBT (#lesbian, gay, #bisexual and #transgender) individuals from workplace discrimination? The U.S. Supreme Court (SCOTUS) has set October 8 as the date it will hear arguments in three cases that will ultimately decide whether Title VII of the Civil Rights Act prohibits discrimination based on gender identity and sexual orientation.
The cases all involve the prohibition against employment #discrimination on the basis of “sex” under Title VII, and the justices will consider whether anti-LGBTQ discrimination is a form of sex discrimination. While the Equal Employment Opportunity Commission (EEOC) previously determined that discrimination based on sexual orientation or gender identity violates Title VII, there has been a lack of federal legislation addressing the issue.
Two of the cases, Zarda v. Altitude Express and Bostock v. Clayton County, Georgia, were consolidated because both include claims that employers discriminated on the basis of sexual orientation. The third, R.G. & G.R. Harris Funeral Homes v. EEOC, will determine whether anti-transgender discrimination is a form of #sexdiscrimination.
Appeals courts have been divided over whether a federal law that bans discrimination on the basis of sex includes sexual orientation. The U.S. Court of Appeals for the 2nd Circuit Court of Appeals in New York ruled in favor of Donald Zarda, a skydiving instructor who claimed he was fired because of his sexual orientation. The court held that "sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination."
In the second case, the 11th U.S. Circuit Court of Appeals in Georgia ruled against Gerald Lynn Bostock, a municipal worker in Clayton County who alleged he was fired because he is gay. In the third case involving Aimee Stephens, a Michigan funeral home worker who was terminated after coming out as transgender, the federal EEOC filed a lawsuit on the employee’s behalf. The U.S. Court of Appeals for the 6th Circuit Court of Appeals said transgender people are protected, ruling the firing constituted sex discrimination under federal law.
The U. S. Justice Department under the Trump administration has expressed its view that Title VII does not cover anti-LGBTQ discrimination. It made that case with respect to anti-gay discrimination when the Zarda case was pending, and asserted in a brief to SCOTUS that the appeals court wrongly concluded Title VII covers anti-transgender discrimination in the Harris case.
When #SCOTUS renders a decision, which is expected by the middle of next year, the decision will have a significant impact in workplaces across the country. Although many state and local governments already prohibit discrimination based on sexual orientation and gender identity, others do not afford any protections to members of the LGBTQ community. A ruling by the justices in favor of prohibiting discrimination based on sexual orientation and gender identity may require many employers to change their policies and procedures.
It is imperative that employees and employers be informed about this issue and the status of these cases. While New Jersey’s Law Against Discrimination provides more complete protection for #LGBTQ workers than is spelled out in Title VII, it does not protect federal employees working in the state. If you are an employer or employee with concerns about sex discrimination in your workplace, we are here to provide advice and counsel. Call us at 973-509-8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.