Supreme Court will Rule if Law Bars Gay and Transgender Discrimination

Posted by Kenneth N. Winkler on

The United States Supreme Court agreed to determine whether federal employment law prohibits sexual orientation and transgender discrimination.

What is the Court Going to Clarify?
The high court has announced that it will hear a trio of cases that raise the issue of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits sexual orientation discrimination and transgender discrimination.   While Title VII protects against sex discrimination, the federal courts are split on whether sexual orientation and transgender discrimination fit within Title VII’s definition of sex discrimination.  The Supreme Court’s decision will hopefully resolve this controversy and clarify the scope of Title VII’s coverage.

The Three Cases on Appeal
Two of the cases to be heard, one from Georgia and the other from New York, deal with sexual orientation coverage under Title VII with opposite conclusions. The Second Circuit Court of Appeals concluded that sexual orientation is a subset of sex discrimination while the Eleventh Circuit Court of Appeals concluded that a termination based on homosexuality is not prohibited under Title VII. The third case addresses Title VII coverage for transgender discrimination.  The Court will review the Sixth Circuit Court of Appeals’ conclusion that Title VII prohibits transgender discrimination based on sex and sex stereotypes.

Legislative Efforts
Like the Circuit Courts, there is a split among government agencies regarding the scope of Title VII’s protection of gay and transgender employees.   The Trump administration, through a Department of Justice amicus brief in the New York case, opposed the extension of Title VII discrimination protections on the basis of sexual orientation.  The Equal Employment Opportunity Commission takes an opposite stand.  Given the conservative makeup of the Supreme Court, Congress will likely continue its push to enact the Equality Act, a law that would ban discrimination against LGBTQ individuals in employment, among other programs.

Employers should keep in mind that several states have laws that protect employees from sexual orientation discrimination and transgender discrimination.   For this reason and others, it is prudent for employers to check their state laws and also include these categories in their EEO and Anti-harassment policies.