On April 22, 2019, the U.S. Supreme Court said it would hear three cases that address the extent to which Title VII, which bars sex discrimination, protects lesbian, gay, bisexual and transgender (LGBT) individuals based on sexual orientation and gender identity.
The 11th U.S. Circuit Court of Appeals ruled in 2018 in Bostock v. Clayton County, Ga., that binding court precedent says Title VII does not prohibit employers from discriminating against workers based on sexual orientation. The case involved a court child welfare services coordinator who alleged he was fired because he is gay.
However, the 6th Circuit ruled in EEOC v. R.G. & G.R. Harris Funeral Homes Inc. that a funeral home unlawfully fired its director after he notified the owner he was transitioning from male to female. The court also decided that funeral home’s actions were not protected by the Religious Freedom Restoration Act (RFRA). The court determined that Title VII prohibits transgender discrimination based on sex and sex stereotypes and that the funeral home and its owner’s exercise of religion was not substantially burdened under the RFRA by EEOC enforcement.
In Zarda v. Altitude Express, the 2nd U.S. Circuit Court of Appeals decided that Title VII, also determined should be interpreted to prohibit sexual orientation discrimination. In deciding that Title VII prohibits sexual-orientation discrimination, the court stated, “Since 1964, the legal framework for evaluating Title VII claims has evolved substantially.” The court also noted that Title VII now included protections against discrimination based on sex stereotypes.
The split on this issue is not exclusive to the federal appellate courts. The Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) are at odds on the matter as well. In the Zarda case, the DOJ took a different stand from the EEOC on Title VII’s scope. The EEOC asserted that Title VII prohibits discrimination based on sexual orientation, and the DOJ submitted an amicus brief arguing that it does not. The DOJ noted that its stance contradicted the EEOC’s but said that the EEOC is “not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.”