Supreme Court 2019 October Session: Navigating Title VII and LGBTQ Discrimination

Can an employer terminate an employee because they are gay or transgender? That is the question before the Supreme Court of the United States (“SCOTUS”) today, October 8, 2019. SCOTUS will hear arguments on three (3) cases in order to decide whether discrimination based on sexual orientation, gender identity, gender expression, or transgender status constitutes discrimination “on the basis of sex.”

In the 2015 session, SCOTUS determined in Obergefellv. Hodges that the states could not ban same-sex marriage. As a result, the EEOC determined that discrimination against LGBTQ individuals was illegal. However, no federal law expressly prohibits employers from terminating an employee due to that person’s sexual orientation or gender identity.

SCOTUS will first hear oral arguments for Bostock v. Clayton County and Zarda v. Altitude Express, Inc. These arguments will be heard together because they both focus on whether discrimination based on sexual orientation is covered under Title VII. In Bostock, an employee was terminated when his employer found out he was involved in a gay softball league. In Zarda, the employee was a skydive instructor who was terminated when he told a woman he was about to take on a tandem skydive, “Don’t worry, I’m gay.”  SCOTUS will then hear oral arguments for EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., in which an employee was terminated after she wrote a letter to her coworkers explaining she would begin transitioning to a female by coming to work in female clothing.

Currently, twenty-two (22) states, the District of Columbia, Puerto Rico, and many municipalities have passed employment nondiscrimination laws covering sexual orientation and/or gender identity that apply to private employers.  However, the protections are not uniform — some protect only gender identity or transgender status, and some differentiate between public and private employment.

For more information Title VII, please contact HR Partners at 785-233-7860. In addition, we would be pleased to assist you with any other HR matter your business may need guidance with.

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