April 22, 2019
The Supreme Court today agreed to hear three cases on the issue of whether gay and transgender workers are protected under the federal anti-discrimination laws. As noted in a prior post, in Zarda v. Altitude Express, Inc., the en banc Second Circuit Court of Appeals (which covers New York) recently held that “sexual orientation discrimination constitutes a form of discrimination ‘because of…sex,’ in violation of Title VII.” That decision overturned prior Second Circuit precedent and allowed claimants to assert sexual discrimination claims based on sexual orientation under federal law.
The Supreme Court has now agreed to review the Zarda decision, which involved the question of whether Zarda had a viable claim under Title VII that he was fired as a skydiving instructor because of his sexual orientation. The Court also agreed to hear a case brought by a Georgia worker, Gerald Bostock, in which the Eleventh Circuit Court of Appeals found that Bostock did not have a viable federal claim that he was fired wrongly because of his sexual orientation. Finally, the Court also agreed to hear a Sixth Circuit decision finding that federal law does protect a transgender person, Aimee Stephens, who told her boss she would transition to a female gender identity and wanted to dress in women’s clothing at work. Notably, these cases present not only a legal divergence between the Courts of Appeals, but also a split among several federal agencies. Specifically, the federal Equal Employment Opportunity Commission has argued that Title VII does bar sexual orientation discrimination, while the U.S. Department of Justice has taken the position that it does not.
I will continue to monitor developments before the Supreme Court on this important matter.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you need assistance with a particular employment or employment discrimination issue, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.