FIFTY YEARS after Stonewall, there is still no federal law providing workplace protection to LGBT people, notwithstanding the fact that 22 states and many municipalities have enacted laws that bar discrimination on the basis of sexual orientation. Legislative efforts to provide federal protection have not been successful, though some protections exist due to judicial rulings on other legislation.
Title VII of the Civil Rights Act bars employment discrimination because of an individual’s “race, color, religion, sex, or national origin.” Federal courts, however, have interpreted the meaning of “sex discrimination” inconsistently. Some courts have held that Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity, while some federal courts have held that these are not protected classes, since they are not listed as specific protected categories.
In an effort to address this issue, in May 2019 the U.S. House of Representatives passed the Equality Act, which bars discrimination based on sex, sexual orientation, and gender identity in employment. However, it appears unlikely that the Senate will approve the bill. This issue will now come to a head before the U.S. Supreme Court, which agreed to hear three landmark cases in October concerning the employment rights of gay and transgender individuals. Regarding Title VII, the question before the Court is whether the prohibition against workplace discrimination based on sex also prohibits discrimination based on sexual orientation or gender identity.
Uncharacteristically, federal agencies have argued against each other in the courts. The Trump Administration has contended that Title VII does not apply to sexual orientation or transgender status, while the Equal Employment Opportunity Commission has maintained that it does, since discrimination based on sexual orientation or gender identity is inexorably rooted in expectations about a person’s sex. The interpretation of Title VII in this regard has been a cause célèbre in appellate courts in recent years, with most interpreting it to exclude sexual orientation and gender identity.
The three cases pending before the Supreme Court are the first LGBT cases since the retirement of Justice Anthony Kennedy, a strong proponent of LGBT rights. It was Justice Kennedy who wrote the 2015 opinion in Obergefell v. Hodges, which legalized same-sex marriage. His replacement, Justice Brett M. Kavanaugh, is one of five conservatives on the Court. The three cases would therefore be the first to test the new Court’s approach to LGBT rights.
Two cases before the Supreme Court involve claims of workplace discrimination based on sexual orientation: Altitude Express Inc. v. Zarda (No. 17-1623), which went in favor of the plaintiff in New York and is now on appeal, and Bostock v. Clayton County (No. 17-1618), a decision in Georgia that went the opposite way and is now on appeal. The third case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (No. 18-107), is a workplace discrimination suit brought by a transgender woman in Ohio, on appeal by the defendants. It involves an additional question of discrimination against workers based on conformity to gender stereotypes, which scotus ruled in 1989 was a form of sex discrimination.
Until the Supreme Court decides these issues, members of the LGBT community will have no choice but to continue to struggle with the patchwork of conflicting court decisions and statutes, which provide limited protection to those who reside in some states and cities. How the Court answers the question as to what constitutes “sex discrimination” is anyone’s guess.
Andrew Kimler, a partner at Vishnick McGovern Milizio LLP, a New York-based law firm, regularly writes and lectures on LGBT legal issues.