On April 22, 2019, the Supreme Court granted certiorari in three cases that raise the question of whether Title VII prohibits discrimination on the basis of sexual orientation or gender identity. In two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, the Court will consider whether Title VII’s prohibition on sex discrimination protects individuals from discrimination on the basis of sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, on the other hand, the Court will consider whether discrimination on the basis of gender identity is prohibited under Title VII.
In Zarda, the Second Circuit ruled that “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” Conversely, in Bostock v. Clayton County, Georgia, the Eleventh Circuit rejected the argument that Title VII prohibits sexual orientation discrimination, setting up a circuit split that is ripe for SCOTUS review.
In Harris Funeral Homes, the Sixth Circuit ruled that gender identity discrimination is prohibited under Title VII. In its order granting certiorari, the Supreme Court noted that its review of the Harris decision would be limited to the question of “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping” under Supreme Court precedent.
Although states like New York and California expressly prohibit discrimination on the basis of sexual orientation and gender identity, most states do not provide such protections. As such, employees in those states may only look to federal law for protection.
Oral argument will be held in the fall, with decisions expected in 2020.
We will, of course, continue monitor developments in this area and provide updates as they become available.