News & Insights

Scotus Set To Rule Whether Title Vii Prohibits Discrimination On The Basis Of Sexual Orientation And Gender Identity

The United States Supreme Court recently granted certiorari in a group of three cases challenging the scope of Title VII of the Civil Rights Act of 1964’s (“Title VII”) prohibition on discrimination on the basis of sex. This decision will resolve a conflict among federal circuits as to whether Title VII prohibits employment discrimination on the basis of sexual orientation and gender identity. This topic is currently the subject of uncertainty as many circuits differ on whether the term “sex” encompasses sexual orientation.

The three cases that the Supreme Court will hear are the following: (1) Altitude Express v. Zarda; (2) Bostock v. Clayton County, Georgia; and (3) R.G. & G.R. Harris Funeral Homes, Inc. v EEOC.  In Zarda, the Second Circuit reversed the dismissal of Donald Zarda’s lawsuit, in which he claimed he was terminated as a skydiving instructor after revealing his sexual orientation to skydiving students. In doing so, the Second Circuit held that Title VII protection extended to claims of discrimination based on sexual orientation.

However, in Bostock, Gerald Bostock claimed his employer terminated him from his position as a child welfare services coordinator after his supervisors learned of his sexual orientation and the Eleventh Circuit affirmed the lower court’s dismissal of his lawsuit on the basis the alleged discrimination under Title VII was not actionable under Eleventh Circuit precedent. The Supreme Court has consolidated these two cases to decide whether Title VII prohibits discrimination on the basis of sexual orientation.

The third case will be heard separately, as the Supreme Court will determine the separate question of whether Title VII prohibits discrimination on the basis of gender identity. In R.G. & G.R. Harris, the EEOC filed a claim on behalf of a transgender female funeral director based on her termination for a violation of the company’s dress code when she wore women’s clothes. The Sixth Circuit held that the termination was unlawful discrimination on the basis of “sex stereotyping”.

The United States Supreme Court has agreed to place these three employment discrimination cases on its docket for the October term. Employers nationwide should be mindful of the outcome of these cases to ensure future compliance with implementing discrimination policies and procedures.