[dc]O[/dc]n October 8, 2019, the U.S. Supreme Court will hear oral arguments in three cases involving whether the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964 protect LGBT employees. While state laws may provide localized protection, the question of whether the protection extends nationwide has been raised by two employers who claim they have the right under existing Federal law to discriminate based on sexual orientation and transgender status.

Transgender Rights Under Title VII – Funeral Home Case

R.G. &  G.R. Harris Funeral Homes v. EEOC asks whether or not Title VII prohibits workplace discrimination against transgender people based on transgender status and/or sex stereotyping.

In 2007, the owner of a small funeral home in Michigan who describes himself as a devout Christian hired an individual, Aimee Stephens, who identified as a man. Six years later, Stephens told Rost that Stephens  now identified as a woman who wanted to wear women’s clothing to work. Rost fired Stephens because Rost believed this “violated God’s law.”

The EEOC filed suit against Rost, and that 6th Circuit Court of Appeals ruled in favor of Stephens. Rost appealed to the Supreme Court which has agreed to hear the case.

In a related case, the Court ruled in 1989 in Price Waterhouse v. Hopkins that an employer cannot discriminate based on gender dress or behavior stereotypes.

Gay and Lesbian Rights Under Title VII – Skydiving Instructor Case / Child Care Coordinator

The court also consolidated two other cases, Altitude Express v. Zarda and a companion case Bostock v. Clayton County Georgia for hearing October 8, to address whether Title VII prohibits discrimination against gay and lesbian employees. Altitude Express involves a Long Island, New York employer who fired a skydiving instructor, Donald Zarda. Zarda filed a Title VII lawsuit in federal court arguing that the employer had terminated him because he told female skydivers that he was gay so they would feel more comfortable when they were strapped to him for a jump.The trial court threw the case out on grounds that Title VII does not protect against LGBT discrimination, but the 2nd Circuit Court of Appeals reversed, holding that LGBT discrimination “is a subset of sex discrimination” which is prohibited.

Bostock involved a child-welfare services coordinator for Clayton County, Georgia, who had received good performance reviews for over a decade.  He was terminated from his employment and he sued for discrimination but, in a decision was the opposite of the conclusion the 2nd Circuit reached in Altitude Express, the 11th Circuit ruled that Title VII did not apply to discrimination based on sexual orientation.  The Supreme Court agreed to take up both cases to decide whether or not Title VII applies to sexual orientation.

Amicus Briefs

The cases have attracted extensive briefing on both sides. The employers are arguing that Congress did not specify LGBT rights as part of Title VII and that Congress should act to clarify the law if it desires to do so.

Several faith-based organizations such as churches and educational institutions have expressed concern that enacting Title VII might impact their ability to make employment decisions consistent on their faith. For instance, the Council for Christian Colleges and Universities, et al., argue that outlawing LGBT discrimination under Title VII might affect their access to Title IX funding if they make student housing decisions, enact behavioral requirements, or engage in other activities in a manner consistent with their faith.

Among the dozens of briefs, one of the more problematic arguments for people of faith is that transgender and sexuality are not “immutable characteristics” and therefore not protected under Title VII. This argument, raised in the Liberty Counsel brief, could pose problems for those who seek religious accommodation rights if they change their religion.

Members of the House and Senate have filed an amicus brief arguing that the term “sex” in Title VII is broad enough to encompass both sexual orientation and gender identity. They assert that subsequent legislation is not needed to clarify Title VII but that the attempt to enact the Equality Act of 2019 is intended to clarify the existing statute.

The Court will likely announce its decision in both cases in 2020 during the height of the presidential campaign season.


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