On April 22, 2019, the U.S. Supreme Court agreed to take on three cases in the next term that will test whether Title VII protections are available to LGBTQ applicants and employees. Together, Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC will ask the court to determine whether Title VII protects against employment discrimination based on sexual orientation, transgender status, and gender identity.
It’s Not Just the Courts That Are Split
Federal courts are split on the issue and many have taken the position that it is up to Congress to amend Title VII to include sexual orientation and gender identity. However, over the years, repeated efforts to pass legislation has been unsuccessful.
Under the Trump administration, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) stand in opposition to one another on these questions. The EEOC, an independent federal agency, has long maintained that discrimination "against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII." The Trump Administration, however, withdrew Obama-era Title VII guidance in 2017 when Attorney General Jeff Sessions issued a memorandum to U.S. Attorneys, stating, "Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status." The DOJ represents the EEOC at the Supreme Court.
The entire country will be watching the Supreme Court’s next session and will be eagerly anticipating their decision, which we don’t expect until 2020. In the meantime, employers should continue to follow the laws in the states in which they operate. For example, many individual states include sexual orientation as a protected class, such as Wisconsin, or protect sexual orientation and gender identity discrimination, such as Minnesota, Illinois, and Iowa.
Source: CCH/Wolters Kluwer; Michael Hyatt, Director, HR Government Affairs, MRA – The Management Association