Supreme Court to Decide Whether Title VII Protects Against Discrimination on the Basis of Sexual Orientation and Gender IdentityMay 6, 2019
In Bostock, the Eleventh Circuit in 2018 affirmed a district court’s dismissal of claims of sexual orientation discrimination and noted that the Eleventh Circuit had “previously held that discharge for homosexuality is not prohibited by Title VII” and that, “under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued.”
Three months earlier, by contrast, the Second Circuit decided en banc in Zarda that, although sexual orientation discrimination was “not the principal evil that Congress was concerned with when it enacted Title VII,” it is nevertheless prohibited by the statute. Three judges dissented. The Second Circuit found that sexual orientation discrimination is a subset of sex discrimination in part “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.” The Second Circuit discussed at length Hively v. Ivy Tech Community College of Indiana in which the Seventh Circuit similarly held en banc that sexual orientation falls within the meaning of “sex” as set out in Title VII, and therefore discrimination based on sexual orientation in employment is actionable under Title VII. Also with three judges dissenting, the Seventh Circuit majority wrote in 2017 that “the common-sense reality [is] that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Our previous blog posts discussing the Second and Seventh Circuits’ en banc decisions in more depth are available here (Zarda) and here (Hively).
The Second and Seventh Circuits currently stand alone in holding that Title VII prohibits discrimination on the basis of sexual orientation, with every other circuit reaching the same decision as Bostock, apart from the Federal Circuit which has not considered the issue. Although the Supreme Court will not consider the Seventh Circuit’s Hively decision, its decision in Bostock and Zarda will likely resolve the circuit split that divides the Second and Seventh Circuits from every other circuit court, except for the Federal Circuit.
The Court will also hear a similar question in Harris Funeral Homes of whether Title VII protects against gender identity discrimination. In Harris Funeral Homes, the EEOC sued an employer alleging discrimination based on the termination of an employee who had begun transitioning. The Sixth Circuit held that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” in violation of Title VII.
The above decisions, and any eventual Supreme Court decision, concern only federal anti-discrimination protections under Title VII. A variety of state and local governments have expressly barred sexual orientation discrimination under their anti-discrimination laws, including New York State, New York City, and New Jersey.
The Supreme Court will hear oral arguments in all three cases next Term and is expected to issue its decision by June 2020.
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