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SCOTUS: Is LGBTQ discrimination included in sex discrimination?

by | Oct 10, 2019 | Discrimination


The U.S. Supreme Court will hear arguments in a trifecta of employment discrimination cases on October 8th. The issue before the Court in the trio of cases is whether discrimination based on “sex”, which is banned under federal anti-discrimination laws, includes workplace discrimination based on gender identity and sexual orientation.

Title VII of the Civil Rights Act of 1964 declares sex discrimination at work unlawful for most employers with at least 15 employees. The Equal Employment Opportunity Commission, or EEOC, is the federal agency that enforces Title VII. Since 2015, the EEOC has included sexual orientation and gender identity within its interpretation of “sex” for purposes of Title VII discrimination.

The various circuits of the U.S. Courts of Appeal are split on how they answer this question, and now the U.S. Supreme Court has agreed to break the tie by hearing the three cases:

  • Stephens: Whether a Michigan funeral-home violated Title VII by firing a biologically male employee who identifies as a woman for presenting herself as female at work, or for terminating her for not conforming to gender stereotypes. The 6th Circuit said that Title VII’s discrimination ban based on sex includes discrimination based on “transgender and transitioning status” as well as negative treatment based on sex stereotyping.
  • Bostock: Whether Title VII prohibited a Georgia county employer from discharging a social worker for his sexual orientation. The 11th Circuit held that Title VII does not cover discrimination on the basis of sexual orientation.
  • Zarda: Whether a New York employer’s firing of a skydiving instructor based on sexual orientation was unlawful sex discrimination under Title VII. The 2nd Circuit (the circuit that includes New York) overruled prior decisions to hold that Title VII does prohibit this kind of discrimination.

While the outcome of these cases will impact both employees and employers across the country, it is important to note that state and local laws in some jurisdictions already provide similar protections to employees. For example, New York state law, which applies to most employers with four or more employers within the state, expressly forbids employment discrimination based on sexual orientation. New York City law goes a step further and protects employees against discrimination based on gender identity or expression as well as sexual orientation, again applying to employers with at least four employees.

These cases will no doubt be followed closely by employers and employees alike due to their potential to alter the legal landscape in large portions of the country.

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