Showdown at Title VII Corral: Supreme Court to Weigh in on Sexual Orientation and Transgender DiscriminationIs discrimination against an employee because of sexual orientation or transgender status a violation of Title VII? The EEOC previously took the position that Title VII covers those statuses but the Trump administration has not followed suit. Accordingly, as of now, it may depend on where you live.

In 2017 and 2018, the Second, Sixth, and Seventh Circuits ruled that adverse employment actions based on a person’s sexual orientation was sex discrimination under Title VII. That means that federal courts in 10 states (Connecticut, New York, Vermont, Kentucky, Michigan, Ohio, Tennessee, Illinois, Indiana, and Wisconsin) have precedent that Title VII prohibits sexual orientation discrimination. However, during that same timeframe, the Fifth and Eleventh Circuits ruled otherwise, so the federal courts in six states (Louisiana, Mississippi, Texas, Alabama, Florida and Georgia) have precedent that sexual orientation is not a protected status under Title VII. To add yet another layer in this arena, many states and municipalities have adopted their own laws to prohibit discrimination based on sexual orientation and gender identity.

Enter the Supreme Court

The U.S. Supreme Court may decide once and for all whether Title VII covers sexual orientation and transgender status. The court has agreed to consolidate two cases on the sexual orientation issue: Bostock v. Clayton County, Georgia, which found that sexual orientation was not covered, and Zarda v. Altitude Express, Inc., which found that it was covered. In Bostock, Gerald Bostock, a child welfare services coordinator, alleged he was terminated a month after someone made disparaging comments about his sexual orientation and his playing in a gay softball club. In Zarda, Donald Zarda, a skydiving instructor, alleged he was terminated after he told a customer he was gay. The court will consider whether Title VII’s prohibition of discrimination “because of…sex” includes discrimination based on sexual orientation.

In a similar vein, the court has agreed to hear R.G. & G.R. Harris Funeral Homes v. EEOC, a Sixth Circuit case presenting the issue of whether Title VII covers discrimination based on transgender status. In this case, Aimee Stephens alleged she was terminated from her job after she announced she was a transgender woman and would start wearing women’s clothing to work. In this case, the EEOC is arguing that Ms. Stephens’ termination was a violation of Title VII’s prohibition of sex discrimination because of her transgender status but also because she failed to conform to a gender stereotype.

What Now?

Until the Supreme Court decides, the safest course is to make decisions based on reasons that are not related to a person’s sexual orientation or gender identity.