Supreme Court to Consider Whether Federal Anti-Discrimination Law Protects Gay and Transgender Employees
The Supreme Court has decided to consider one of country’s biggest workplace law issues—whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on sexual orientation or gender identity.FN1 The circuit courts of appeal are split on the question of whether Title VII’s prohibition of discrimination based on “sex” covers sexual orientation, with majority holding Title VII does not prohibit discrimination based on sexual orientation.FN2
Federal agencies are also split on the issue. For years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position Title VII prohibits sexual orientation discrimination. The EEOC reports that between 2013 and 2017, it received nearly 6,000 charges of sexual orientation discrimination.FN3 The U.S. Department of Justice under President Trump, on the other hand, has taken the opposite position.FN4
The Supreme Court’s ruling on this important issue will have wide-reaching implications nationwide. Regardless of the outcome, employers should note that at least twenty-two states, including Colorado, and many employers in their own corporate policies, currently prohibit workplace discrimination based on sexual orientation and gender identity. As always, employers should take steps to ensure employment decisions are based solely on legitimate, non-discriminatory reasons and to document those decisions to minimize exposure to lawsuits.
FN2: In the past two years, the Second Circuit, which hears appeals from New York, Vermont, and Connecticut; and the Seventh Circuit, which hears appeals from Illinois, Indiana, and Wisconsin, found that sexual orientation discrimination is discrimination because of “sex” under Title VII. See Zarda v. Altitude Express, Inc., No. 15-03775 (2d Cir., Feb. 26, 2018); Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir., Apr. 4, 2017). For previous Rocky Mountain Employer blog articles about these cases, see https://www.rockymountainemployersblog.com/blog/2018/3/1/another-circuit-court-finds-that-sexual-orientation-discrimination-is-sex-discrimination; https://www.rockymountainemployersblog.com/blog/2017/4/13/inclusion-of-sexual-orientation-as-a-title-vii-protection-ripe-for-supreme-court-review.
FN3: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm; Erin Mulvaney, Sexual Orientation Bias at Work Goes Before Eighth Circuit, Bloomberg Law (April 17, 2019), https://news.bloomberglaw.com/daily-labor-report/appeals-court-to-consider-whether-lgbt-workers-can-sue-for-bias.
FN4: See Alan Feuer, Justice Department Says Rights Law Doesn’t Protect Gays, New York Times (July 27, 2017), https://www.nytimes.com/2017/07/27/nyregion/justice-department-gays-workplace.html.