On Monday, April 22, 2019, the United States Supreme Court granted petitions for certiorari for three cases that center on the question of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) protects LGBT rights.  Two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, concern whether, under Title VII, sex discrimination includes discrimination on the basis of an employee’s sexual orientation.  The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, poses the question of whether the Title VII prohibition against sex discrimination prohibits gender identity discrimination.  Due to the similarity of the issues, the Supreme Court has consolidated the Altitude Express and Bostock matters for briefing and oral argument.  The Supreme Court’s ultimate decision in each of these three matters is significant because it will settle current Circuit splits, as well as disagreement among Agencies in the Federal government, on the scope of Title VII.

As discussed in a prior blog post, in Altitude Express, the Second Circuit joined the Seventh Circuit in finding that Title VII does protect employees from being discriminated against based on sexual orientation.  Specifically, the Second Circuit held that the text of Title VII necessarily includes sexual orientation as “…the most natural reading of [Title VII]’s prohibition on discrimination ‘because of…sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”  The Seventh Circuit in Hively v. Tech Community College, similarly determined that a reading of Title VII in the current cultural and legal context includes sexual orientation in the scope of Title VII.

Conversely, the Eleventh Circuit in Bostock stuck to its prior precedent in Evans v. Ga. Reg’l Hosp. that Title VII does not protect an employee against sexual orientation discrimination.  The Fifth Circuit, among others, has likewise held that discharge on the basis of sexual orientation is not prohibited by Title VII.  Accordingly, the Supreme Court’s decision in Altitude Express and Bostock should settle this debate and standardize the applicability of Title VII among the Circuits.

As to the question of whether gender identity is protected by Title VII, the Sixth Circuit in R.G. & G.R. Harris Funeral Homes answered in the affirmative.  Specifically, the Sixth Circuit found that it would be “analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”  It also held that Title VII’s established ban against sex stereotyping in Price Waterhouse v. Hopkins, would necessarily mean protection for a transgender person.  However, other Circuits that addressed this issue, have generally determined that gender identity is not a protected status under Title VII.  In addition, an October 4, 2017 Memorandum from then Attorney General Jeff Sessions, expressed the Department of Justice’s current position that Title VII “…does not encompass discrimination based on gender identity per se, including transgender status.”  This Memorandum withdrew a December 15, 2014 memo released during the Obama Administration that expressed the opposite view.

In granting certiorari for R.G. & G.R. Harris Funeral Homes, the Supreme Court limited the scope of its review to the issue of whether Title VII prohibits discrimination against transgender individuals based on their status as transgender or sex stereotyping.  This is a more narrow review than that requested by the petitioner, R.G. & G.R. Harris Funeral Homes, but the Supreme Court’s holding should address the main issue – whether Title VII, under either standard, protects against gender identity discrimination.

It is unclear what the outcome of these cases will be.  There is a current conservative majority on the Supreme Court, but these specific issues, as well as the individual Justice’s interpretations of the law, may not fall squarely along political and ideological lines.  In any case, although these will be very significant decisions from the civil rights perspective, its day-to-day, practical repercussions on most employers should be somewhat limited.  The Equal Employment Opportunity Commission (“EEOC”) already enforces its view that sexual orientation and gender identity harassment are prohibited by Title VII, and many state anti-discrimination laws already include sexual orientation and/or gender identity as protected categories.  However, Title VII is the chief federal anti-discrimination law with nationwide applicability, and the interpretation of its scope will have impacts within and outside the employment sector.