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Supreme Court Agrees to Hear Cases Determining Extent of Title VII Protection for LGBT Workers

The Supreme Court of the United States announced three cases will be argued next term that could determine whether Title VII protects LGBT employees from workplace discrimination. 

Title VII prohibits discrimination because of “race, color, religion, sex, or national origin,” but it does not explicitly mention sexual orientation or gender identity.  Federal courts have disagreed on whether discrimination based on sexual orientation or gender identity falls within Title VII’s prohibition against sex-based discrimination.  Differing opinions on this topic exist within the federal government as well:  the Equal Employment Opportunity Commission (“EEOC”) has taken the position that Title VII prohibits discrimination based on sexual orientation and gender identity, while the Department of Justice has argued it does not.  The Supreme Court’s decisions may ultimately decide these conflicts.

Two cases represent a split in federal appellate courts regarding the extent, if any, to which Title VII prohibits sexual orientation discrimination as a subset of sex discrimination.  In Altitude Express v. Zarda, a skydiving company fired Donald Zarda, a skydiving instructor, after Zarda informed a female client he was gay to assuage her concern about close physical contact during skydives.  The trial court dismissed Zarda’s sexual orientation discrimination claim.  In an opinion written by Chief Judge Robert A. Katzmann on behalf of a full panel of the U.S. Court of Appeals for the Second Circuit, the Court reversed the trial court’s dismissal and held that sexual orientation discrimination is properly understood as a subset of discrimination on the basis of sex.  In other words, in the Second Circuit, sexual orientation discrimination is prohibited under Title VII.  The Second Circuit aligned its thinking with the Seventh Circuit’s April 2017 opinion in Hively v. Ivy Tech Community College of Indiana, which held that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

The U.S. Court of Appeals for the Eleventh Circuit reached the opposite conclusion in Gerald Bostock v. Clayton County Georgia.  Gerald Bostock alleged he was terminated from his county job after the county learned of his involvement in a gay recreational softball league and his promotion of involvement in the league to co-workers.  The trial court dismissed and the Eleventh Circuit affirmed, relying on its own precedent that broadly held that Title VII does not prohibit sexual orientation discrimination.  In other words, in the Eleventh Circuit, Title VII does not prohibit sexual orientation discrimination.

The Supreme Court consolidated the cases into a single case to determine whether the prohibition in Title VII against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.

The third case, R.G. & G.R. Harris Funeral Homes v. EEOC, focuses on whether Title VII applies to transgender employees.  In 2007, a funeral home hired Aimee Stephens, whose employment records identified her as a man.  Later, Stephens told the funeral home’s owner she identified as a woman and wanted to wear women’s clothing to work.  The owner fired Stephens, believing allowing Stephens to wear women’s clothing violated the funeral home’s dress code and “God’s commands.”  The EEOC filed suit on Stephens’ behalf.  The trial court dismissed a portion of the lawsuit because “transgender . . . status is not currently a protected class under Title VII,” but permitted other portions to proceed based on the claim Stephens was discriminated against because the funeral home objected to her appearance and behavior as departing from sex stereotypes.  The Sixth Circuit agreed that Stephens had viable claims.  The Supreme Court will review “[w]hether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping” under prior Supreme Court precedent.

All three cases will affect the employment rights of LGBT workers.  Dinsmore & Shohl lawyers will closely monitor the Court’s analysis of these cases.  Dinsmore’s Labor and Employment Practice Group stands ready to assist employers in navigating this developing area of law.  Dinsmore’s experience in this arena includes accomplished labor and employment lawyers, former law clerks to federal judges who have drafted orders on these very issues, former federal government attorneys, litigators and published scholars.  

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume IX, Number 115


About this Author

Jan Hensel, labor, employment partner, Dinsmore Shohl, law firm

Jan E. Hensel is a Partner in the Labor and Employment Department.  Ms. Hensel devotes her practice exclusively to the representation of employers in the employment law arena. She consults with employers of all sizes to help them comply with the myriad of State and Federal employment laws that affect the workplace, including the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, Title VII and the Ohio Civil Rights Act. Ms. Hensel frequently conducts onsite trainings and seminars to...

Justin M Burns, Litigation Lawyer, Dinsmore, Columbus, Ohio, pleadings, motions, attending hearings, drafting memoranda

A member of Dinsmore’s Litigation Department, Justin regularly draws on his experience as a federal law clerk. Working in a federal court taught him about how judges think through their decisions and the details judges look for in an argument, and he considers those lessons with every brief he writes. He’s experienced in drafting pleadings and motions, attending hearings, drafting memoranda and performing other services for clients.

Prior to joining the firm, Justin served as a judicial clerk (staff attorney) for United States District Judge Brian S. Miller, United States District Court for the Eastern District of Arkansas.  As a federal clerk, Justin was responsible for advising the judge on pending matters before the court, researching and preparing orders addressing all stages of litigation in civil and criminal cases, and interacting with counsel throughout a case’s duration before the court. He developed unique insight into how the judiciary decides cases, how judges make decisions, and how juries react to different forms of advocacy.

Outside of the firm, Justin, who also holds a master’s degree in College Student Personnel, remains committed to higher education. He published a law review article analyzing Ohio’s anti-hazing law in the Akron Law Review in 2015. His volunteerism and advocacy for higher education and the fraternity/sorority experience earned him recognition as the 2016 Hank Nuwer Anti-Hazing Hero Award, an award sponsored by HazingPrevention.org and named in honor of a long-time journalist and author of hazing-related resources. Justin currently serves as a national officer for his fraternity, and he remains involved in working with higher education professionals and college students to promote a positive fraternity experience on college campuses.