High Court to Decide Gay, Transgender Job Protections

Editor’s note: The US Supreme Court returned to work this week with an agenda of politically charged cases and right out of the gate are three employment cases revolving around the interpretation of Title VII’s prohibition against discrimination “on the basis of sex.” The cases are being heard today.

As the analysis (below) of the cases by Seyfarth Shaw attorneys explains, courts across the nation don’t agree whether federal civil rights law protects gays, lesbians and transgender people from employment discrimination. In many parts of the country, employers can refuse to hire and can fire workers just because of their gender identity or sexual orientation.

The cases the court being argued now were brought by two gay men and a transgender woman who were fired. Federal courts of appeal reached different conclusions in the case of the gay men. One court said the “on the basis of sex” language of Title VII of the 1964 civil rights law extends to sexual orientation. Another appellate court ruled that it did not and that employers could fire or refuse to hire on the basis of sexual orientation.

A third Circuit of Appeals said the language covers gender identify, ruling employers can not discriminate against transgender people.

It will be up to the Supreme Court to decide how far Title VII extends. A decision is not expected for several months.

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On April 22, 2019, the Supreme Court announced that it would review a trio of decisions questioning whether Title VII’s prohibition against discrimination “on the basis of sex,” includes sexual orientation and gender identity.

In Zarda v. Altitude Express, the plaintiff alleged that his employer violated Title VII for terminating his employment due to his being gay. Reviewing the matter en banc, the Second Circuit ruled for the plaintiff and held that Title VII’s prohibition against discrimination on the basis of sex necessarily prohibited discrimination on the basis of sexual orientation. In so ruling, it overturned prior Circuit precedent. In reaching this holding, the Second Circuit joined the Seventh Circuit in finding sexual orientation discrimination to be prohibited by Title VII.

Three months later, the Eleventh Circuit reached the opposite conclusion. In its decision, the Eleventh Circuit re-affirmed circuit precedent established  in Blum v. Gulf Oil Corp and Evans v. Georgia Regional Hospital that the protections of Title VII did not extend to claims of sexual orientation discrimination.

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R.G. & G.R. Funeral Homes, a claim that arose from the Sixth Circuit, addresses the related issue of gender identity discrimination.  The claim involves a  transgender woman who was terminated from her job after transitioning from male to female. The Sixth Circuit found that a termination based on an employee’s gender identity falls squarely within Title VII’s prohibition against discrimination on the basis of sex and sex-based stereotypes. Accordingly, the Sixth Circuit held that Title VII prohibits discrimination on the basis of gender identity.

The Supreme Court’s review of the scope of Title VII comes at a pivotal point in history. Amendments expressly including LGBT protections in Title VII have been introduced in every Congress since the 1990s, but none have passed.  Thus, Courts for over a generation have been grappling with the question of how broadly to construe the term “sex” in Title VII.

While the Supreme Court has never answered this question, many proponents of a broad reading of the word “sex” contend that its prior precedents lend some support to a broad reading of the term by finding that sex stereotypes (not acting how someone of your gender is supposed to act) give rise to a cognizable claim under Title VII.  See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75 (1998). Opponents of such a broad view of the statute, in contrast, argue that the word “sex” must be given the limited historical view intended by the drafters of Title VII during the 1964 passage of the Civil Rights Act.

In its first gay rights ruling in a generation without the voice of Justice Kennedy it is unclear how the court will rule. The Supreme Court’s decision may create a federal right of action for individuals who suffer discrimination on the basis of sexual orientation or gender identity, the Court may rule that no such right exists under current law, or the Court may find that a right exists but must be balanced against an employer’s religious liberty interest. Stay tuned as we continue to follow this matter.

This article was originally published on the Seyfarth Shaw website.

Mr. Schwartz-Fenwick is a partner in the Labor and Employment Practice Group of Seyfarth Shaw LLP.  He is particularly well-versed in benefits-related litigation under the Employee Retirement Income Security Act (ERISA).  Mr. Schwartz-Fenwick defends complex class actions and single-plaintiff lawsuits under ERISA.  In the class action realm, he has defended various types of claims, including claims for benefits and claims for breach of fiduciary duty, including 401(k) fee litigation.

In addition to his ERISA litigation practice, Mr. Schwartz-Fenwick has significant experience in general employment matters.  He regularly assists in the defense of complex litigation matters brought under the National Labor Relations Act, and represents clients in hearings before the National Labor Relations Board and in grievance arbitrations.  Mr. Schwartz-Fenwick represents clients in litigation under Title VII of the Civil Rights Act and the Illinois Human Rights Act.  He also provides day-to-day counseling and advice to clients about the various laws affecting the employment relationship.

Mr. Schwartz-Fenwick speaks nationwide and publishes regularly on a variety of employment law and litigation topics, and issues regarding diversity and inclusion in the legal profession. He has also served as a contributor to Employee Benefits Law (ABA) and The Developing Labor Law (BNA), and developed in conjunction with Equality Illinois a best practices guide for Illinois employers on LGBT inclusion.

Mr. Schwartz-Fenwick leads the firm’s LGBT Affinity Group.  He is a member of the executive committee of United Pride, the president of the board of Unsilence, a human rights educational organization, and serves on multiple committees at his synagogue.

John Ayers-Mann is an associate in the Labor & Employment department of Seyfarth Shaw LLP’s Boston office.

John’s practice focuses on wage & hour class and collective action litigation, complex employment discrimination litigation, ERISA and employee benefits litigation, and labor management relations.

During law school, John was an article editor for the Review of Banking and Financial Law journal.

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