The first Monday in October begins a new Supreme Court term each year. For those that follow labor and employment cases, the first Tuesday in October (specifically, October 8, 2019) will be the real “opening day” as the Court has devoted its docket to three cases that will require the Court to decide whether Title VII’s prohibition on sex discrimination extends to sexual orientation and/or gender identity.
The Court granted certiorari to hear three cases dealing with the scope of sex discrimination under Title VII: Altitude Express, Inc. v. Zarda; Bostock v. Clayton County., Ga.; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. In Altitude Express and Bostock the plaintiffs alleged that their discharges from employment were based on their status as gay males, which did not conform to their employer’s expectations of male behavior in violation of Title VII. R.G. & G.R. Harris Funeral Homes involves a claim by a biological male who was discharged after informing the employer of an intent to transition to female and to dress consistent with that intention. Suing on the employee’s behalf, the EEOC maintains that Title VII is violated by adverse actions based on an individual’s transgender status and failure to conform to sex stereotypes. Although the Court has previously held that sex stereotyping violates Title VII, it has not yet decided whether discrimination “because of sex” extends beyond the traditional male/female gender divide. With the lower courts split on this issue, it appears that the Supreme Court will at last resolve what Congress intended.
Other employment-related issues to be decided by the Court this term are the following: whether a plaintiff bringing a race discrimination claim under Section 1981 must prove “but for” causation – that is, “but for” race, the plaintiff would not have suffered an adverse action – in contrast with race being a motivating (but perhaps not the sole) factor, as the U.S. Court of Appeals for the Ninth Circuit has concluded (Comcast v. National Association of African-American Owned Media, a non-employment case involving a civil rights statute often used for employment claims); whether the statute of limitations for a claim under the Employee Retirement Securities Act (ERISA) runs from the date the employee-plaintiff received all relevant disclosures from the plan administrator or, as the U.S. Court of Appeals for the Ninth Circuit held, from the date the plaintiff knew that the plan’s actions could violate the law (Intel Corp. Investment Policy Committee v. Sulyma), and finally, what pleading standard applies under ERISA to claims alleging the fiduciaries of an employee stock ownership plan breached their fiduciary duty to participants when they continued to invest in the employer’s own stock despite allegations that the employer had fraudulently concealed problems with a company unit that could adversely affect the stock price (Retirement Plans Committee of IBM v. Jander).