SCOTUS to Decide if Federal Employment Law Prohibits Discrimination on the Basis of Sexual Orientation and Transgender Status

After refusing to accept or reject petitions for months the Supreme Court has finally agreed to decide whether employers violate Title VII when they discriminate against employees on the basis of sexual orientation or transgender status. Among other things, Title VII prohibits discrimination “because of . . . sex.” 

Until 2017 all federal courts of appeals to consider the question had held Title VII does not protect employees on the basis of sexual orientation. This changed when the Seventh Circuit reversed itself in Hively v. Ivey Tech Community College concluding “discrimination of the basis of sexual orientation is a form of sex discrimination.”

The Supreme Court will hear three petitions next fall. In Zarda v. Altitude Express the Second Circuit held that discrimination on the basis of sexual orientation violates Title VII. In Bostock v. Clayton County Board of Commissioners the Eleventh Circuit reaffirmed its previous holding that discrimination on the basis of sexual orientation doesn’t violate Title VII. In EEOC v. R.G. & G.R. Harris Funeral Homes the Sixth Circuit held that discrimination on the basis of being transgender violates Title VII.

The main opinion in Zarda concluded the question in this case is whether sexual orientation is “properly understood” as a “subset of actions taken on the basis of sex.” The court concluded it was by looking at the statute’s text. According to the court: “the most natural reading of the statute's prohibition on discrimination ‘because of . . . sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation. This statutory reading is reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.”

In Harris Funeral Homes the Sixth Circuit concluded discriminating against transgender persons violates Title VII because it amounts to discrimination on the basis of sex stereotyping and that transgender status is protected under Title VII. The Supreme Court will review both lower court holdings.

In Price Waterhouse v. Hopkins (1989) the Supreme Court held that employees may bring sex discrimination claims based on sex stereotyping under Title VII. In 2004 the Sixth Circuit extended Price Waterhouse’s reasoning to transgender persons as they are also engaging in “non sex-stereotypical behavior.” So that previous case controlled the outcome of Harris Funeral Homes.

The Sixth Circuit also held that transgender status is a protected class under Title VII. Harris Funeral Homes argued that transgender status refers to “a person's self-assigned ‘gender identity’” rather than a person's sex, and therefore such a status is not protected under Title VII. The Sixth Circuit disagreed noting “it is 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.”

Justice Kennedy will go down in history for providing the fifth vote holding same-sex couples have a constitutional right to marry. He is no longer on the Court and has been replaced by a Justice who is predicted to be more conservative, Justice Kavanaugh. All eyes will be on the Court next term as it decides these cases.