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Supreme Court to Address Sexual Orientation Discrimination

The U.S. Supreme Court has agreed to consider a trio of cases addressing sexual orientation discrimination next term, answering two contested questions that have split the courts.

Specifically, the justices will consider whether Title VII’s ban on sex-based discrimination prohibits discrimination based on sexual orientation and whether the statute prohibits discrimination against transgender plaintiffs based on their status as transgender or based on sex stereotyping.

To answer the first question, the Court will resolve a circuit split, accepting cases from the U.S. Court of Appeals for the Second and Eleventh Circuits reaching opposite outcomes.

In the Second Circuit case, Donald Zarda filed suit against Altitude Express Inc. alleging that he was fired after revealing his sexual orientation to a skydiving client. A district court judge granted summary judgment to Zarda’s former employer on the ground that the statute does not prohibit discrimination on the basis of sexual orientation.

A three-judge panel of the Second Circuit affirmed, but after an en banc rehearing, the court reversed.

“We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of … sex,’ in violation of Title VII,” the majority wrote, reversing precedent in the circuit and reinstating the plaintiff’s claim.

Title VII sets forth a broad rule of workplace equality, the Second Circuit emphasized, with sex “necessarily” a factor in sexual orientation.

“Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex,” the court wrote. “Indeed, sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

However, the Eleventh Circuit reached a different outcome in a case brought by a child welfare services coordinator in Clayton County, Georgia. Gerald Bostock asserted that after the county learned that he was gay, it falsely accused him of mismanaging public money so that it could fire him, when the real reason for his termination was his sexual orientation.

A district court dismissed Bostock’s Title VII suit, and the Eleventh Circuit affirmed a ruling that the statute does not apply to discrimination based on sexual orientation, citing an earlier case for support.

The circuit split also includes an opinion from the en banc Seventh Circuit, reaching the same conclusion as the Second Circuit.

With regard to protection for transgender employees, the Court will hear oral argument in a case brought by the Equal Employment Opportunity Commission (EEOC) against a funeral home company in Michigan.

The agency filed suit in 2014, claiming that R.G. & G.R. Harris Funeral Homes violated Title VII when it terminated Aimee Stephens two weeks after she announced her plans to transition from male to female, with the company’s owner informing her that what she was “proposing to do” was unacceptable. The funeral home argued that the Religious Freedom Restoration Act shielded it from liability, but the Sixth Circuit disagreed, reversing summary judgment in favor of the EEOC.

“Tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it,” the federal appellate panel wrote, and compliance with federal law does not equate with endorsing Stephens’s views. “The fact that [the owner] sincerely believes that he is being compelled to make such an endorsement does not make it so.”

Oral argument for all three cases (with one hour allotted for the consolidated Second and Eleventh Circuit cases and the third case heard separately) will be in the fall.

To read the Supreme Court’s order list granting certiorari in the cases, click here.

Why it matters: Given the widening circuit split on the application of Title VII to sexual orientation discrimination, it was only a matter of time before the Supreme Court granted cert to consider the issue. With oral argument in the fall, employers may have an answer to the oft-litigated questions by the end of the year.

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