SCOTUS Watch 2019: Does Title VII Cover Discrimination Based on Sexual Orientation or Gender Identity?

By Meghan Droste, October 22, 2019

The Supreme Court heard arguments on October 8 in what I am sure will prove to be three landmark cases: Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The first two cases, which the Court consolidated for arguments, raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation. The Harris Funeral Homes case raises the question of whether those same protections prohibit discrimination on the basis of gender identity.

These questions are settled law in the federal sector. The Commission concluded in 2012 that Title VII protects gender identity and in 2015 that sexual orientation is covered. Appeals courts were split, however, on these issues as they apply to private and public sector employees. For that reason, the Supreme Court is now poised to answer these questions for the entire country, and potentially reverse EEOC precedents.

The employees in these cases argue that “sex” as understood in Title VII must encompass discrimination on the basis of sexual orientation and gender identity. As the Commission found in the Macy v. Department of Justice and Baldwin v. Department of Transportation cases, the employees assert that these forms of discrimination inherently take into account their sex and, therefore, their employers discriminated against them “because of … sex,” as prohibited by Title VII. They also point to the idea of sex stereotyping, arguing, as the EEOC found, that these forms of discrimination may be due to stereotypes regarding who an individual should be attracted to and what reproductive organs men and women should possess. Finally, the employees pointed to the Supreme Court’s decision in Oncale v. Sundowner Systems, in which the Court rejected arguments that Congress could not have intended to prohibit same-sex sexual harassment, to argue that Congress’s understanding of sex, sexual orientation, and gender identity is not the correct question in these cases.

Those who observed the arguments have reported that it is unclear how the Court will come out on these cases. For example, while Justice Gorsuch appeared to find that taking an employee’s sexual orientation into account necessarily involves sex, he also cautioned against “massive social upheaval.”

I urge all federal sector practitioners to keep an eye out for the Court’s decisions in these cases. While the Court may issue them as early as January, I expect that we won’t see anything until closer to the end of the term in June. Droste@FELTG.com