U.S. Supreme Court

SCOTUS will consider sexual orientation, transgender discrimination under Title VII

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On Monday, the U.S. Supreme Court accepted three petitions regarding whether Title VII of the 1964 Civil Rights Act prohibits workplace discrimination based on sexual orientation and transgender status.

The National Law Journal reports that there is a circuit split between the New York-based 2nd U.S. Circuit Court of Appeals, which found that Title VII’s prohibition on discrimination based on sex includes sexual orientation, and the 11th U.S. Circuit Court of Appeals in Atlanta, which found that it did not.

The 2nd Circuit finding, Altitude Express v. Zarda, involves a skydiving company instructor who was fired after telling a customer that he is gay. The en banc opinion was published in 2018.

Also, the Chicago-based 7th U.S. Circuit Court of Appeals found in a 2017 en banc opinion that Title VII protects employees from discrimination on the basis of sexual orientation. The defendants did not file a cert petition in that action.

The 11th Circuit opinion, Bostock v. Clayton County, stems from a county child welfare services coordinator who alleges that he was fired after his employer found out that he is gay. The full 11th Circuit in a 9-2 ruling denied an en banc appeal for that case in 2018, according to the Daily Report.

The third petition, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, is a 2018 opinion from the Cincinnati-based 6th U.S. Circuit Court of Appeals, which found that Title VII protected a funeral home director who was fired after disclosing that she was transitioning from male to female.

In that appeal, the U.S. Supreme Court limited the question to whether Title VII prohibits discrimination of transgender status or gender stereotypes under Price Waterhouse v. Hopkins, the landmark 1989 opinion which found that gender stereotyping is actionable sex discrimination.

In 2017, former U.S. Attorney General Jeff Sessions released a memo that Title VII does not protect workers from discrimination based on gender identity. It followed oral arguments in Altitude Express v. Zarda. Former ABA President Linda Klein issued a press release in 2017 expressing disappointment in the Department of Justice’s new position, as expressed in Zarda.

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