Seyfarth Synopsis: Today, the Supreme Court granted review to a trio of Title VII cases raising the issue of whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The Court’s decision in these cases could create a federal right of action for individuals discriminated against on the basis of sexual orientation and gender identity.

On April 22, 2019, the Supreme Court announced that it would review a trio of decisions questioning whether Title VII’s prohibition against discrimination “on the basis of sex,” includes sexual orientation and gender identity.

In Zarda v. Altitude Express, the plaintiff alleged that his employer violated Title VII for terminating his employment due to his being gay. Reviewing the matter en banc, the Second Circuit ruled for the plaintiff and held that Title VII’s prohibition against discrimination on the basis of sex necessarily prohibited discrimination on the basis of sexual orientation. In so ruling, it overturned prior Circuit precedent. In reaching this holding, the Second Circuit joined the Seventh Circuit in finding sexual orientation discrimination to be prohibited by Title VII.

Three months later, the Eleventh Circuit reached the opposite conclusion. In its decision, the Eleventh Circuit re-affirmed circuit precedent established in Blum v. Gulf Oil Corp and Evans v. Georgia Regional Hospital that the protections of Title VII did not extend to claims of sexual orientation discrimination.

R.G. & G.R. Funeral Homes, a claim that arose from the Sixth Circuit, addresses the related issue of gender identity discrimination. The claim involves a transgender woman who was terminated from her job after transitioning from male to female. The Sixth Circuit found that a termination based on an employee’s gender identity falls squarely within Title VII’s prohibition against discrimination on the basis of sex and sex-based stereotypes. Accordingly, the Sixth Circuit held that Title VII prohibits discrimination on the basis of gender identity.

The Supreme Court’s review of the scope of Title VII comes at a pivotal point in history. Amendments expressly including LGBT protections in Title VII have been introduced in every Congress since the 1990s, but none have passed. Thus, Courts for over a generation have been grappling with the question of how broadly to construe the term “sex” in Title VII.

While the Supreme Court has never answered this question, many proponents of a broad reading of the word “sex” contend that its prior precedents lend some support to a broad reading of the term by finding that sex stereotypes (not acting how someone of your gender is supposed to act) give rise to a cognizable claim under Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75 (1998). Opponents of such a broad view of the statute, in contrast, argue that the word “sex” must be given the limited historical view intended by the drafters of Title VII during the 1964 passage of the Civil Rights Act.

In its first gay rights ruling in a generation without the voice of Justice Kennedy it is unclear how the court will rule. The Supreme Court’s decision may create a federal right of action for individuals who suffer discrimination on the basis of sexual orientation or gender identity, the Court may rule that no such right exists under current law, or the Court may find that a right exists but must be balanced against an employer’s religious liberty interest. Stay tuned as we continue to follow this matter.