By Lisa Soronen
After refusing to accept or reject petitions for months, the Supreme Court has finally agreed to decide whether employers violate Title VII when they discriminate against employees on the basis of sexual orientation or transgender status. Among other things, Title VII prohibits discrimination “because of ... sex.”
Until 2017 all federal courts of appeals that considered the question held Title VII does not protect employees on the basis of sexual orientation. This changed when the 7th Circuit reversed itself in Hively v. Ivey Tech Community College, concluding “discrimination of the basis of sexual orientation is a form of sex discrimination.”
The Supreme Court will hear three petitions next fall. In Zarda v. Altitude Express, the 2nd Circuit held that discrimination on the basis of sexual orientation violates Title VII. In Bostock v. Clayton County Board of Commissioners, the 11th Circuit reaffirmed its previous holding that discrimination on the basis of sexual orientation doesn’t violate Title VII. In EEOC v. R.G. & G.R. Harris Funeral Homes, the 6th Circuit held that discrimination on the basis of being transgender violates Title VI.
The main opinion in Zarda concluded the question in this case is whether sexual orientation is “properly understood” as a “subset of actions taken on the basis of sex.” The court concluded it was by looking at the statute’s text.
According to the court: “the most natural reading of the statute's prohibition on discrimination ‘because of ... sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation. This statutory reading is reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.”
In Harris Funeral Homes the 6th Circuit concluded discriminating against transgender persons violates Title VII because it amounts to discrimination on the basis of sex stereotyping and that transgender status is protected under Title VII. The Supreme Court will review both lower court holdings.
In Price Waterhouse v. Hopkins (1989) the Supreme Court held that employees may bring sex discrimination claims based on sex stereotyping under Title VII. In 2004 the 6th Circuit extended Price Waterhouse’s reasoning to transgender persons since they are also engaging in “non sex-stereotypical behavior.” So that previous case controlled the outcome of Harris Funeral Homes.
The 6th Circuit also held that transgender status is a protected class under Title VII. Harris Funeral Homes argued that transgender status refers to “a person's self-assigned ‘gender identity’” rather than a person's sex, and therefore such a status is not protected under Title VII. The 6th Circuit disagreed noting “it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex.”
In 2015, Justice Anthony Kennedy provided the fifth vote and wrote the majority opinion holding same-sex couples have a constitutional right to marry. He is no longer on the court and has been replaced by Justice Brett Kavanaugh, who is predicted to be more conservative. All eyes will be on the court next term as it decides these cases.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.