Finally! U.S. Supreme Court to Weigh in on Title VII LGBTQ+ Protection
The U.S. Supreme Court finally agreed to hear three cases from the circuit courts that split on whether Title VII of the Civil Rights Act of 1964 protects against discrimination in the workplace based on sexual orientation and gender identity. The basic question boils down to whether the word “sex” includes a protection for LGBTQ+ employees.
EEOC Initiative/Trigger
Although there have been efforts over the last 50+ years to seek such protection under Title VII, the true impact came from the Equal Employment Opportunity Commission’s (EEOC) push beginning in 2012, when it issued an administrative ruling holding that gender identity discrimination constitutes sex bias and therefore is protected. As is widely known, in Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the Seventh Circuit jumped into the fray with both feet in 2017, finding that Title VII’s “sex” does indeed include sexual orientation. In fact, before the full Seventh Circuit heard that case, a three-judge panel on that court had stated that it was a “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act”—a reference to same sex marriage being legal.
Three Cases to Be Heard
This momentum led to the three cases that will now be heard by the U.S. Supreme Court:
In February 2018, the U.S. Court of Appeals for the Second Circuit issued its decision in Altitude Express, Inc. v. Zarda, where a skydiving instructor was fired after disclosing to a female customer—to ease her husband’s concerns about her being strapped to the instructor—that he was gay. The Second Circuit found sexual orientation to be protected by Title VII.
Only 10 days later came the U.S. Court of Appeals for the Sixth Circuit’s decision in EEOC v. R.G. & G.R. Harris Funeral Homes, holding that Title VII does protect against gender identity discrimination. Finally, in May 2018, the U.S. Court of Appeals for the Eleventh Circuit issued its decision in Bostock v. Clayton County, Georgia, holding that sexual orientation discrimination is not protected by Title VII—a clear conflict with the Second Circuit.
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"Finally! U.S. Supreme Court to Weigh in on Title VII LGBTQ+ Protection," by Jason E. Reisman and Mark Blondman was published in the September 2019 edition of Employee Benefit Plan Review (Volume 73, Number 7). Reprinted with permission.
This article first appeared in Blank Rome Workplace on April 22, 2019.