On Monday, April 22, 2019, the United States Supreme Court agreed to hear three cases regarding whether Title VII of the Civil Rights Act protects the LGBTQ communities from discrimination based on sex.
The Act does not specifically mention sexual orientation, gender identity, or transgender status, but many appellate courts and the Equal Employment Opportunity Commission have read the prohibition against “sex” as covering these groups of people. Other appellate courts have insisted that the prohibition does not apply to these groups. The three cases, Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Funeral Homes Inc. v. EEOC, come from the 2nd, 11th, and 6th circuits, respectively. Zarda and Bostock deal with sexual orientation while R.G. & G.R. deals with transgender and gender identity.
With many states and municipalities passing their own anti-discrimination laws that specifically prohibit LGBTQ discrimination, employers have been caught in the middle of trying to determine what, if any, legal obligations they have from city to city and state to state. For instance, while Idaho’s state anti-discrimination law does not specifically protect the LGBTQ communities from discrimination, several Idaho cities, including Boise, Coeur d’Alene, Pocatello, Idaho Falls, Ketchum, Moscow, Sandpoint, and others have passed ordinances that do specifically protect these communities from discrimination. If the Supreme Court holds that Title VII protects the LGBTQ communities, it could possibly resolve this compliance quagmire. If it finds that the term “sex” does not relate to these statuses, the morass will likely grow worse for employers. From a practical standpoint, many employers have already voluntarily “added the words” to keep from having to maintain different practices and policies from city to city, let alone from state to state.
We will keep you up to date on these three cases as they make their way to a decision by the Supreme Court. If you have any questions about this or any other legal topic, please feel free to contact our office.