SCOTUS to decide whether Title VII forbids LGBT discrimination

Dive Brief:

The U.S. Supreme Court will decide whether employees are protected from workplace discrimination based on sexual orientation and transgender status, it announced Monday.
The High Court will hear a trio of cases: Bostock v. Clayton County, Georgia; Altitude Express, Inc., et al. v. Zarda, Melissa, et al. and R.G. & G.R. Harris Funeral Homes v. EEOC, et al. In Zarda, the 2nd U.S. Circuit Court of Appeals held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers based on their sexual orientation, a decision that applies in Connecticut, New York and Vermont. In the most recent movement in Bostock, the 11th Circuit rejected a request that the full court reconsider a decision in which a three-judge panel held that the law doesn't prohibit discrimination on the basis of sexual orientation. And the 6th Circuit — which covers Kentucky, Michigan, Ohio and Tennessee — ruled in Stephens that Title VII outlaws discrimination on the basis of an employee's failure to conform to sex stereotypes or their transgender and transition status.
As the juxtaposing rulings in Zarda and Bostock illustrate, different interpretations of Title VII's protections have surfaced. This split is not only embodied by separate courts, however; it also is evident in a clash between the U.S. Department of Justice (DOJ) and the U.S. Equal Employment Opportunity Commission (EEOC). DOJ, representing the Trump administration, has argued that Title VII does not prohibit discrimination based on sexual orientation or transgender status. In October, it filed a brief weighing in on Harris Funeral Homes v. EEOC and argued the 6th Circuit erred in its decision. DOJ said that "the ordinary meaning of 'sex' does not refer to gender identity." EEOC has taken the opposite stance.

Dive Insight:

The Supreme Court's decision on this issue will no doubt carry significance as it could resolve a circuit split and an agency disagreement. Regardless of how the High Court rules later this year, this announcement should prompt employers to ensure their policies and practices prohibit discrimination based on sexual orientation or gender status, according to Haynes and Boone Partner Jason Habinsky.

"This is a wake-up call to employers throughout the country, regardless of the way the Supreme Court goes," Habinsky told HR Dive in an interview. "Employers may not be focused on these issues and now it really should resonate that these are issues employers should be considering."

If the High Court decides Title VII includes protections for LGBT workers, it will provide clarity on an issue that has caused inconsistency among courts and confusion among employers, Habinsky said. "There are many states and local legislatures who have implemented their own protections on discrimination on these bases. But you also have gaps throughout the country where there are no protections," he said. "This is really the opportunity for the Supreme Court to essentially declare what the law is nationwide."

The justices may rule differently, of course. In that case, Habinsky predicts the Court's action will spur lawmakers at the federal, state and local levels to push for legislation granting the protections. Lawmakers already introduced the Equality Act — a bill that would extend the protections of Title VII to include LGBT workers — earlier this year. Some experts have said such legislation will never pass with a divided congress. But that doesn't mean employers can dismiss the issue, Habinsky said. "I think the easiest course would be for states and cities to proactively take it upon themselves. I think that's the clearest and easiest path to get these protections legislated," he said.

The outcome of the High Court's decision is not one easily predicted according to the Court's composition and political climate, Habinsky said. "I think there are enough legal nuances where it's not so clear cut — there are various interpretations to the issues at hand," he said. "I think there is room for it to go either way."

As employers wait for the justices to make their decision, they can focus on taking a proactive approach to the legislation that's likely to make its way to their jurisdictions, one way or another. "Employers should, in any event, cast the widest net in protections in the workplace," Habinsky said. He noted that employers need to ensure their policies and procedures enforce and communicate this, and that training should address these protections, too.