On April 22, 2019, the United States Supreme Court indicated that it may be ready to determine whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based upon sexual orientation and transgender status by agreeing to hear the following three appeals: (1) Altitude Express Inc. v. Zarda, 2nd Cir. No. 17-1623; (2) Bostock v. Clayton County, Ga., 11th Cir. No. 17-1618; and (3) R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, 6th Cir. No. 18-107.
In the case of Altitude Express Inc. v. Zarda (which can be read here), a New York skydiving instructor claimed that being fired for being “100 percent gay” can amount to a Title VII violation. The Second Circuit Court of Appeals agreed and held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination” under Title VII. Altitude Express Inc. at 20.
In the case of Bostock v. Clayton County, Ga. (which can be read here), a Georgia child welfare services coordinator claimed that being discriminated against based upon sexual orientation and gender stereotyping can amount to a Title VII violation. The Eleventh Circuit Court of Appeal disagreed and held that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock at 2.
In the case of R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (which can be read here and as we blogged about here), a Michigan funeral home director claimed that being terminated based upon gender transitioning can amount to a Title VII violation. The Sixth Circuit Court of Appeals agreed and held that Title VII prohibits discrimination “on the basis of transgender and transitioning status.” R.G. & G.R. Harris Funeral Homes at 22.
The United States Supreme Court is scheduled to hear oral arguments on all three cases at the start of the October 2019 Term.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.