Supreme Court to decide issues important to LGBT employees
The U.S. Supreme Court on April 22 agreed to decide three cases involving whether federal law protects employees from discrimination on the basis of their sexual orientation or gender identity. How have federal discrimination laws been applied to LGBT employees?
The decision of the Supreme Court in these cases will resolve an issue that is the subject of differing opinions among federal courts and agencies. Two of the cases — Bostock v. Clayton County, Georgia, and Altitude Express Inc. v. Zarda — involve employees who allege they were terminated because they were gay. The third case, R.G. & G.R. Harris Funeral Homes v. EEOC, involves the termination of a transgender employee. The Supreme Court’s decisions should determine whether discrimination against employees based upon their sexual orientation, gender identity and/or transgender status violates federal law. The determination should also resolve the inconsistent positions of the Equal Employment Opportunity Commission, which maintains that discrimination because of gender identity or sexual orientation violates federal law, and the Department of Justice, which maintains that federal law does not prohibit discrimination based on gender identity.
What are the details in each case?
Altitude Express involves a skydiving instructor who was terminated after he allegedly excused the inappropriate touching of a customer by telling the customer he was gay. The instructor sued, alleging he was terminated because he was gay. The Second Circuit Court of Appeals found that discrimination based on sexual orientation is motivated, at least in part, by sex and thus is prohibited by federal law. Bostock involves a child welfare services coordinator who was terminated after he participated in a gay recreational softball league. His lawsuit alleging sexual orientation discrimination was dismissed by the district court based on the conclusion that sexual orientation discrimination is not prohibited by federal law and the dismissal was affirmed by the Eleventh Circuit Court of Appeals. Harris Funeral Home involved an employee who was male at birth but, after presenting as a man at work for six years, decided to have sex reassignment surgery. The employee was fired two weeks later because she would no longer dress like a man under the funeral home’s dress code. The Sixth Circuit Court of Appeals ruled that discrimination against employees because of their failure to conform to sexual stereotypes or because of their transgender and transitioning status violated Title VII.
What could the outcome of these appeals mean for LGBT rights (and employers)?
If the Supreme Court determines that Title VII’s prohibition against discrimination “because of ... sex” includes sexual orientation, gender identity and transgender status, then LGBT employees will be protected from adverse employment actions motivated by their sexual orientation, sexual identity or transgender status in the same manner that employees are prohibited from discrimination on the basis of sex, race, national origin and religion. However, the Supreme Court could determine that LGBT employees are not entitled to protection under Title VII.
Paula Burkes, Business writer