This week, the United States Supreme Court agreed to consider whether Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of gay and transgender status.
The Court will consider this issue in the context of three cases: Two involve claims that employees were fired because of their sexual orientation. In the third case, the plaintiff claims she was fired because she was transgender and preparing to live openly as a woman. The Court will hear the cases during the nine-month term that begins this October.
Whether anti-discrimination protections do (or should) extend to LGBTQ status is an issue that has divided the country and the Courts for decades. Some federal appeals courts have ruled that sexual-orientation and transgender discrimination constitute forms of discrimination on the basis of “sex,” which Title VII currently prohibits, because they are a form of “sex stereotyping.” The sex-stereotyping theory was first approved by the Supreme Court in 1989 in Price Waterhouse v. Hopkins, the story of which became the subject of the recent movie, “On the Basis of Sex.” In Hopkins, the Court ruled that employers violate Title VII when they treat women negatively based on normative conventions about how they “should” look and act. For example, Hopkins was allegedly told she needed to walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry, and she was allegedly denied a promotion because she did not do so.
Some Courts have since interpreted Hopkins as also prohibiting sexual orientation and transgender discrimination, reasoning that these distinctions similarly implicate stereotypes about how men and women should look and whom they should be attracted to. Other courts have simply ruled that these are separate classes that Title VII did not include and did not intend to include; therefore, additional protections must come from Congressional legislation.
This issue will almost certainly divide the Supreme Court, and the outcome could turn on Justice Brett Kavanaugh’s recent confirmation. Justice Kavanaugh replaced retired Justice Anthony Kennedy, a conservative who usually supported gay rights and authored significant Court opinions on such issues, including the Court’s 2015 decision legalizing gay marriage and its 2003 opinion invalidating laws that criminalize gay sex. In contrast, Kavanaugh’s approach to gay rights is largely unknown, as he was not involved in any major related cases as an appeals court judge.
The Supreme Court’s decision may have important implications for employers. If the Court sides with the employees, the decision could create nationwide workplace protections for gay, transgender, and other members of the LGBTQ community. Meanwhile, and even if the Court ultimately denies these protections under Title VII, employers should remember that about half of all states have implemented their own laws that provide certain workplace LGBTQ protections. Moreover, even in states that have not enacted such laws, like Ohio, many cities (including Cleveland, Columbus, and Dayton) and counties within those states have enacted similar laws. Therefore, employers should ensure they are aware of these laws and how they apply to each location in which they operate. Employers should also review their anti-discrimination training materials and policies and ensure that they are consistent with applicable laws.