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In the fall of 2019, the Supreme Court will hear several cases involving LGBTQ discrimination in the workplace. This is notable for many reasons, not least of all considering the new composition of the Supreme Court. No LGBT-related cases have been heard by the Supreme Court since Justice Anthony Kennedy announced his retirement, whose seat has since been filled by Trump appointee Brett Kavanaugh.
The legal question involved in these “test cases” is whether or not Title VII of the Civil Rights Act of 1964—which clearly prohibits discrimination on the basis of sex—extends its protection to LGBTQ-based discrimination claims. This is in question because Title VII does not explicitly include sexual orientation in its language, but federal appeals courts in Chicago, New York, and Cincinnati have all concluded that protection for this kind of discrimination is, in fact, enshrined by the statute. For Chicago and New York, the cases decided specifically addressed the question of gay and lesbian-based discrimination, while the Cincinnati court extended Title VII’s protections to trans men and women.
Although the Obama administration long appraised Title VII in similar fashion to these appeals courts, the Trump administration has taken a dramatically different view, arguing that the authors of the statute never intended sex discrimination to include LGBTQ-based discrimination. This is in line with the administration’s recent actions, including their withdrawal of Obama-era guidance to educators, which advised that they should treat trans-based discrimination as sex discrimination.
Here are three cases that will be taken up by the Supreme Court in the fall:
The first, which was decided by the federal appeals court in New York, involves an employee of a skydiving company who claimed that he was terminated because of his sexual orientation. Due to the nature of his job, Donald Zarda was required to strap himself tightly to clients in order to jump in tandem from the plane. After telling one of the female clients that he was gay in an attempt to put her at ease, her boyfriend complained to the company. Mr. Zarda was then terminated.
The second, which was taken up by a Georgia federal appeals court, involves a Clayton County employee, Gerald Bostock, who claims he was fired because of his sexuality. In that case, the court sided with the employers, who argued that Bostock was let go after receiving audit results for the funds he managed.
The third, which was decided in the Cincinnati federal appeals court but originally came from Michigan, will be the test case for trans discrimination. In that case, a funeral home employee was terminated after informing her employers that she was in the process of transitioning. The funeral home made the argument that Congress did not intend to implicitly include trans individuals in the protections afforded by Title VII. The court found in favor of the appellant.
With the recent appointments of Justices Gorsuch and Kavanaugh, the timing of the Supreme Court hearing these test cases is distressing. More likely than not, LGBTQ activists will have their hands full come 2020.
If you are a member of the LGBTQ community and are experiencing discrimination, reach out to our LGBTQ discrimination attorneys. With offices in San Francisco, Marin County, and Oakland, our attorneys are available for free consultation. Each situation is unique, and only a consultation with a qualified attorney can help you assess the law and the facts and whether you have a case in terms of LGBTQ discrimination.