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  • Leslie A. Farber

Supreme Court to Weigh in on LGBT Rights in the Workplace

In a decision that is certain to generate headlines in the middle of the 2020 presidential election campaign, the U.S. Supreme Court will take up the issue of whether or not federal employment discrimination laws protect LGBT workers. After considering two cases claiming discrimination based on sexual orientation and a third that involves a funeral home employee who was fired after disclosing that she was transitioning from male to female, the justices agreed to review the cases next term. This means they will be argued in the fall or winter with decisions likely by June 2020.

This will be a major test of LGBT rights in cases that look at whether federal civil rights law bans job discrimination on the basis of sexual orientation and gender identity. Specifically, the issue is whether Title VII of the federal Civil Rights Act of 1964, which prohibits sex discrimination, protects LGBT people from job discrimination. Human rights advocacy groups are urging the Supreme Court to join a growing legal consensus that civil rights laws do protect LGBT individuals against discrimination in the workplace.

Title VII does not specifically mention sexual orientation or transgender status, but the Equal Employment Opportunity Commission (EEOC) and some federal courts already have said that Title VII protects LGBT employees from employment discrimination. For example, federal appeals courts in Chicago and New York have ruled recently that gay and lesbian employees are entitled to protection from discrimination because of the statute’s prohibition on discrimination “on the basis of sex.” The federal appeals court in Cincinnati has extended similar protections for transgender people. However, sex is not defined in Title VII. 

In the first of the three cases, the federal appeals court in New York ruled in favor of a skydiving instructor who claimed he was fired because of his sexual orientation. The full 2nd U.S. Circuit Court of Appeals abandoned its earlier holding that Title VII did not cover sexual orientation and ruled 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 a gay employee of Clayton County who claimed he was fired in 2013 because he is gay. In a three-page opinion, the court noted it was bound by a 1979 decision that held "discharge for homosexuality is not prohibited by Title VII."

In the case involving the transgender woman who was fired by a Michigan funeral home, the federal Equal Employment Opportunity Commission filed a lawsuit on the employee’s behalf. The U.S. Court of Appeals for the 6th Circuit ruled the firing constituted sex discrimination under federal law. The funeral home asked that the Supreme Court review the lower court’s ruling and the justices granted the funeral home’s petition. They will consider whether Title VII bars discrimination against transgender people based on either their status as transgender or sex stereotyping under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which indicates that a company cannot discriminate based on stereotypes of how a man or woman should appear or behave.

The Supreme Court’s decision to hear the cases does not affect most workers in New Jersey, where the Law Against Discrimination provides more complete protection for LGBT workers.  However, the law does not protect federal employees in this State. If you are an employer or employee with concerns about sex discrimination at your workplace, we are here to provide advice and counsel on your rights. Please call me with your questions or concerns at 973-509-8500 x213 or email

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.

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