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SCOTUS to Decide Next Term If Title VII Protects Sexual Orientation or Transgender Status

On April 22, 2019, the Supreme Court of the United States granted certiorari in a trio of cases, which will finally allow the Court to decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation or an individual’s status as transgender (or transitioning). As it currently stands, the federal circuits are split on these issues.

The Court will review the Sixth Circuit Court of Appeals case of R.G. & G.R. Harris Funeral Homes v. EEOC, dealing with an employee allegedly fired because she was transitioning from male to female. In that case, the Sixth Circuit plainly concluded that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” and “discrimination on the basis of transgender and transitioning status violates Title VII.”

Based on this holding, the Supreme Court is set to consider “[w]hether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).” If the Court’s framing of the issue is any indication, transgender individuals in the Sixth Circuit may retain, and those in other judicial circuits may obtain, Title VII’s protections, once the Supreme Court rules—but it remains to be seen whether it will be through the bright-line rule adopted by the Sixth Circuit or an extension of the more context-specific stereotyping theory established in Price Waterhouse.

The Supreme Court will also hear the cases of Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda. These cases, originating out of the Eleventh and Second Circuits, respectively, involve claims that employees were allegedly discharged because of their sexual orientation. The Supreme Court will settle the ultimate issue, whether discrimination against an employee because of sexual orientation constitutes discrimination “because of . . .  sex” as prohibited by Title VII. This issue is also the topic of a current circuit split with only the Second and Seventh Circuits recognizing protection for sexual orientation within Title VII.

Oral arguments on these cases could be as early as the fall of 2019, although no date has been set yet, and a decision could be as early as mid-2020.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume IX, Number 113


About this Author

Josh Lushnat, Employment Litigation, Ogletree Deakins, Attorney, Detroit, Michigan

Josh is an associate in Ogletree Deakins’ Detroit Metro office. He represents employers in a variety of complex litigation matters in both state and federal courts. Mr. Lushnat also represents employers in various administrative proceedings and is involved in advising and counseling employers to reduce their potential exposure to litigation.

Prior to joining Ogletree Deakins, Josh practiced with a general practice business litigation firm handling a variety of matters, including employment litigation, commercial litigation, and class actions. He...