Does Title VII Prohibit Discrimination Based on Sexual Orientation or Gender Identity?
Carol Keough October 10, 2019The Supreme Court just heard argument for three cases to decide these legal issues. Can males be fired for being gay? What about women can they be fired for being lesbian? Is there a violation of federal law under Title VII when the basis for termination is sexual orientation? Two men in separate cases were fired allegedly because they were gay. The justices at oral argument of these cases did not appear to be in agreement. From the questions asked it appeared that Justice Sotomayor might be leaning towards the interpretation of Title VII that it protected against discrimination on the basis of sexual orientation. However, Justice Alito may not favor that interpretation because sexual orientation was not an issue when the law was created in 1964. Justice Sotomayor disagreed and said it is the text of the law and not legislative history which should control. The Court is reviewing Altitude Express v. Zarda – the Second Circuit found sexual orientation was protected in this case and Bostock v. Clayton County, Ga.-the Eleventh Circuit found sexual orientation was not protected.
The other issue in a third case was whether Title VII will protect against discrimination on the basis of gender identity. The Court reviewed a case involving a transgender woman allegedly fired for her gender identity. The Sixth Circuit found that gender identity was protected under Title VII in R.G. & G.R. Harris Funeral Homes v. EEOC. Now it is up to the Supreme Court to make the final determination.
A decision from the Supreme Court will not be issued until June 2020. Twenty- three states already protect against discrimination based on sexual orientation and gender identity. Court watchers found it hard to assess from oral argument – which direction the court will take in these cases, but the need for a clear interpretation of Title VII is needed to end the conflicting decisions of the lower courts.