The Supreme Court will soon be deciding on a matter very personal to people who are part of, or allies of, the LGBT (or LGBTQIA+) community. The major issue they are expected to rule on in three upcoming cases is the protection of gay and transgender people against discrimination in the workplace. Specifically, the issue concerns the meaning and implications of the word “sex” in Title VII of the Civil Rights Act of 1964, which protects certain classes, including race, color, religion, sex, and national origin, from discrimination in employment practices: does discrimination against workers based on their LBGT-status qualify as discrimination based on sex?

According to the Public Religion Research Institute (PRRI), nearly 70% of Americans support broad legal protections against discrimination for lesbian, gay, bisexual, and transgender people. Furthermore, a Quinnipiac University national poll in April 2019 revealed that 92% of American voters think employers should be prohibited from firing people due to their sexual orientation or gender identity. On the other hand, according to a recent Reuters/Ipsos poll, nearly half (45%) of Americans incorrectly think federal protections against discrimination already exist for the LGBT community. The lack of awareness hurts this cause that, evidently, the majority of Americans care about. Perhaps some of the confusion among the general public comes from the differences in state and federal laws, as well as the conflicting viewpoints presented by different federal authorities.

While the Equal Employment Opportunity Commission (EEOC) has declared that Title VII does guarantee protections to gay and transgender people, the Department of Justice has stated the opposite, leaving only state laws to provide protections against LGBT discrimination. In states like California, LGBT workers do not have as much to worry about because they are legally protected from discrimination on the basis of sexual orientation, gender identity, and gender expression, but in 28 states, there are no statewide laws at all that prohibit discrimination based on sexual orientation or gender identity in employment, housing, or public accommodations. This means, for instance, that many employers can fire workers just for being gay. Hence, the implications of these three upcoming Supreme Court cases are far-flung and greatly significant to workers across the nation.

One of the cases that will be heard is Altitude Express Inc. v. Zarda, which concerns protections for the LGB part of the LGBT community, or the protection against workplace discrimination based on sexual orientation. Donald Zarda worked as a skydiving instructor at Altitude Express in Long Island, New York. Following him trying to reassure a female client about being strapped tightly to him during a tandem dive by telling her he was “100 percent gay,” Zarda was fired. His claim was that he was fired because he was gay and did not conform to the “straight male macho stereotype.” While Zarda lost initial rounds and then tragically died in a base diving accident in 2014, his estate pursued his case. The latest decision on it by the Second Circuit was in favor of sexual orientation is a protected characteristic under Title VII, as it is covered under the term “sex.” The court used the landmark sex stereotyping case Price Waterhouse v. Hopkins as precedent; in that case, it was ruled that Title VII prohibits employers from discriminating against people because of non-conformity to sex stereotypes (e.g. a woman must not be aggressive or a man must be macho).  

Also concerning protection from employment discrimination based on sexual orientation, the case of Bostock v. Clayton County will soon be heard alongside Zarda’s case. Gerald Lynn Bostock worked as a child welfare services coordinator for the Georgia county for ten years. Then, he joined a gay recreational softball league and was criticized at work in front of his supervisor for his participation in it as well as his sexual identity in general. Bostock was promptly fired by Clayton County for “conduct unbecoming of its employees.” He filed with the EEOC for discrimination under Title VII for being fired because of his sexual orientation. Unlike the other two cases that will be heard with it, the latest decision on Bostock’s case was against the plaintiff, as the Eleventh Circuit approved of the lower court’s dismissal of Bostock’s Title VII claims.

The last case that will be heard concerning LGBT employment discrimination issues is R.G. and G.R. Harris Funeral Homes v. EEOC and Aimee Stephens. Stephens worked as a funeral director for R.G. and G.R. Harris Funeral Homes in Michigan for six years and had an excellent work record. For most of her adult life, Stephens considered herself a transgender woman, but throughout most of her employment as a funeral director, she lived and presented to others as a man. The disparity caused her significant emotional distress, so in 2013 she decided to come out to friends and family that she was transgender, and she planned to soon undergo reassignment surgery. Stephens was fired promptly after informing her employer she would be transitioning from male to female. The EEOC, on her behalf, filed for sex discrimination under Title VII and the latest decision, made by the Sixth Circuit, ruled that the termination based on her transgender status did qualify as sex discrimination and thereby violated Title VII. When the Supreme Court hears the case, they will be answering the question of whether or not Title VII prohibits discrimination against transgender employees on the basis of either their status as transgender or sex stereotyping under Price Waterhouse v. Hopkins.

The Supreme Court will begin hearing these cases on October 7^th, 2019. Of course, no one can say for sure what the Supreme Court will decide. Some worry that the conservative-leaning court will rule against LGBT anti-discrimination protections. However, it seems that the majority of Americans, across party and demographic divides, are on the side of LGBT workers’ rights in this matter. Perhaps the Court will be, too.  

For more information about employment discrimination based on sexual orientation or gender identity or expression, contact a discrimination attorney.