Supreme Court to Decide LGBTQ Coverage Under Title VII

By Lehr Middlebrooks Vreeland & Thompson, P.C.

September 30, 2019

On October 8, the U.S. Supreme Court will hear arguments on whether the prohibition of discrimination based upon “sex” includes sexual orientation, gender identity (transgender status), and gender expression. At  that argument, the Supreme Court will consider three cases: Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda, and R. G & G. R. Harris Funeral Home v. EEOC. Bostock and Zardaare consolidated for oral argument because both concern sexual orientation discrimination.

The EEOC, over 200 employers, and LGBTQ advocacy groups filed “friend of the Court” briefs in the case, supporting their argument that “sex” as defined in Title VII of the 1964 Civil Rights Act includes LGBTQ protection. They argue that because harassment based on gender stereotyping (“he’s not masculine enough”) is prohibited by Title VII, that LGBTQ status must also be included. They also argue that sexual orientation discrimination constitutes association discrimination. For instance, it is unlawful to discriminate against an employee because of the race of the employee’s partner. Thus, the argument goes, sexual orientation is no difference in that it discriminates against employees based on the sex of the employee’s partner.

Opponents include the U.S. Department of Justice and conservative advocacy groups. They argue that when Congress passed Title VII in 1964, LGBTQ status was not a basis to prohibit discrimination; sex discrimination was based on treatment of a man or woman, not their sexual orientation. At the time the Act was passed in 1964, there was one female senator, Margaret Chase Smith of Maine. Opponents assert that the Senate at that time did not consider sex as anything other than biological. Furthermore, opponents claim that it’s up to Congress to add LGBTQ protection, which has been tried unsuccessfully. It’s not the judiciary’s responsibility to make this change to the definition of “sex.”

How will the Supreme Court decide these cases? We think the Court will rule that the definition of sex encompasses LGBTQ status, with Justice Kavanaugh voting with the majority and Justice Gorsuch dissenting. Regardless of the Court’s decision, it is a best practice to include in policies sexual orientation, gender identity, and gender expression as factors upon which discrimination and harassment is prohibited. Discrimination or harassment on these bases has no place in a professional work environment and discrimination or harassment on these base often includes sex stereotyping discrimination and harassment, which has already been recognized as unlawful.