The Supreme Court of the United States (“SCOTUS”) recently granted review of three cases regarding whether sexual orientation and gender identity are protected by Title VII of the Civil Rights Act of 1964 (“Title VII”). The Court’s ultimate decision on these cases has the potential to answer a question which has long been disputed by the circuit courts – does Title VII’s prohibition against sex discrimination encompass sexual orientation and gender identity?

In the first of the three cases, Altitude Express v. Zarda, the plaintiff filed suit in a New York district court claiming his employer terminated his employment because he was gay in violation of Title VII. The district court dismissed the case, stating that Title VII did not allow for claims alleging discrimination based on sexual orientation. The plaintiff appealed, and the U.S. Court of Appeals for the Second Circuit reversed the holding, concluding that Title VII does apply to discrimination based on sexual orientation as a form of sex discrimination.

The second of the three cases, Bostock v. Clayton County, Georgia, maintains a similar action. The plaintiff brought a claim under Title VII alleging that his employer falsely accused him of mismanaging public money so that it could fire him, when in reality he was fired for being gay. The Georgia district court dismissed his claim, stating that Title VII did not apply to discrimination based on sexual orientation, and the U.S. Court of Appeals for the Eleventh Circuit upheld that decision.

Finally, in R.G. & G.R. Harris Funeral Homes v. EEOC, the formerly male plaintiff told her employer that she now identified as a female and wanted to begin wearing women’s clothing to work. The employer fired the plaintiff, and the Equal Employment Opportunity Commission filed suit alleging that the plaintiff was fired based on her transgender status violating Title VII’s prohibition of sex discrimination (and sex stereotyping under the Price Waterhouse v. Hopkins decision). The Michigan district court ruled in favor of the employer, and the U.S. Court of Appeals for the Sixth Circuit reversed, ruling in favor of the employee.

The federal circuit courts are split on these issues, as some hold that sexual orientation and gender identity are protected under Title VII, while others hold they are not. As these cases are decided in the upcoming year, SCOTUS has the chance to bring clarity to this area of the law.

The attorneys in the Labor and Employment Group of Bose McKinney & Evans are available to answer your questions and provide guidance regarding the impact of these decisions.