Supreme Court to Decide if LGBT Workers Are Protected from Employment Discrimination

For roughly 10 years, Gerald Bostock worked as a child welfare services coordinator for Clayton County, Georgia, with happy results. Bostock was widely praised, and his boss gave him consistently positive reviews.

Then Bostock began participating in a gay softball league and people started criticizing and disparaging him for it, as well as for his sexual orientation, and his employer suddenly soured on him. Clayton County told Bostock it intended to conduct an internal audit of the program funds he managed and then fired him for “conduct unbecoming of its employees.”

In 2016, about three years after filing a complaint with the Equal Employment Opportunity Commission, Bostock sued Clayton County for allegedly discriminating against him because he’s gay, leading to an 11th Circuit decision that states federal law does not prohibit discrimination on the basis of sexual orientation.

Now the Supreme Court has agreed to weigh in on Bostock v. Clayton County, Georgia and two other employment-discrimination cases that together could decide whether federal employment-discrimination laws protect LGBT employees. At issue in all three cases is how to interpret the language of Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of… sex.” The question is whether this encompasses sexual orientation and identity. The trio of cases don’t all arrive at the same answer.

Besides Bostock, they are:

Zarda v. Altitude Express, Inc., a sexual-orientation claim brought by a skydiving instructor who was fired after a woman complained that he had told her she needn’t be concerned about jumping in tandem with him because he’s gay. In this case, the Second Circuit said federal law did apply to discrimination claims based on sexual orientation. Though the court acknowledged that such claims historically were not allowed under Title VII of the 1964 Civil Rights Act, it noted that legal doctrines evolve and that the Equal Employment Opportunity Commission had determined in 2015 that sexual orientation is inherently a sex-based consideration. In particular, the Second Circuit reasoned that sexual orientation is a subset of sex discrimination. “[B]ecause one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex,” the court noted.

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., an employer’s decision to fire an employee based on their transgender status was found to be a violation of Title VII. The employer in Funeral Homes was a funeral director and the employee was a transgender woman, who was born male. When the employee began her employment with the funeral home she presented herself as a man, however, on July 31, 2013, the employee provided the owner of the funeral home with a letter indicating that she was struggling with gender identity and intended to have sex reassignment surgery. The owner of the funeral home indicated it was “not going to work out” and offered a severance agreement if she agreed not to say or do anything. When the employee refused, she was fired. Notably, the funeral home’s owner had religious objections to a person “denying” their sex. Ultimately, the Sixth Circuit held that discrimination on the basis of transgender and transitioning status violated Title VII. In so holding, the court noted that “it is analytically impossible to fire an employee based on the employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Further, the Sixth Circuit rejected the funeral home’s attempt to use the Religious Freedom Restoration Act as a defense.

Employers should monitor these decisions closely as increased litigation should be expected if the Supreme Court determines discrimination based on sexual orientation and/or transgender status are prohibited under Title VII.

This is especially true in state and federal circuits, which currently do not provide protections for those classes. On the other hand, if the Supreme Court declines to extend those protections under Title VII, employees would no longer be able to advance similar claims at the federal level. Instead, claims for discrimination based on sexual orientation and transgender status would retreat to the domain of the states which may afford broader protections than those provided by Title VII.

The ultimate result of these decisions may not have as great an impact with respect to insurance coverage since the definition of “discrimination” in employment practices liability policies are generally broad and certain policy forms already include claims for discrimination based on sexual orientation and transgender status.

Regardless of the outcome, these rulings are highly anticipated, especially considering the change in the Supreme Court’s make-up over the past few years. Depending on the result of the 2020 elections, it would not be surprising to see legislative action in the event Supreme Court limits any extension of Title VII.