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LGBT Bias Cases Headed for Supreme Court

2019-04-22

High court will consider if Title VII covers LGBT discrimination

On Monday, April 22nd the Supreme Court agreed to hear three cases that will determine whether gay and transgender workers are protected under Title VII for LGBT discrimination.  The three cases include:

All three cases pose similar questions about the scope of Title VII.  The Zarda and Bostock case ask the justices to decide whether the law’s existing ban on sex discrimination protects workers from bias based on their sexual orientation.  The Harris Funeral Homes case asks whether Title VII protects transgender works based on their gender identity.

The Zarda and Bostock cases will be heard in tandem whereas in the Harris Funeral Home case the justices will decide whether Title VII bars discrimination against transgender employees based either on their transgender status or on the sort of sex-based stereotyping that the court said was protected under Title VII [Price Waterhouse v. Hopkins.]  In its cert petition the justices did not  address the question of whether the Price Waterhouse decision bars employers from applying sex-specific employment practices, like dress codes, according to their employees’ sex rather than their gender identity.

As these cases have moved through the appellate courts, a split has occurred within the federal government about Title VII’s reach as it relates to LGBT workers.  In the Zarda case, the court has asked to file an amicus brief, arguing opposite the Department of Justice which filed an amicus brief arguing that Title VII doesn’t bar sexual orientation discrimination.  In the Harris Funeral Homes case, the U.S. Solicitor General, Noel Francisco, filed a brief with the Supreme Court outlining the federal government’s position that gender identity isn’t covered under Title VII.  Alternatively, EEOC’s position is that gender identity is protected under Title VII. 

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.