Recently published by DRI - The Voice

This fall, the U.S. Supreme Court heard three employment cases that collectively ask: Does Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of…sex,” encompass discrimination based on an individual’s sexual orientation or gender identity? The legal landscape surrounding this question is complex, with state statutes, municipal ordinances, circuit court decisions, and federal policy overlapping and conflicting. Thus, the Supreme Court’s decision could signal sweeping change in employment, housing, credit, and other areas subject to discrimination prohibitions.
 
Cases Before the Supreme Court
On October 8, 2019, the Supreme Court heard oral arguments regarding Title VII employment discrimination protections in Bostock v. Clayton County, Georgia, Zarda v. Altitude Express, Inc., and Equal Employment Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc. Bostock and Zarda deal with sexual orientation, which GLAAD, a nongovernmental media-monitoring organization founded by LGBTQ individuals in the media, defines as “an individual’s enduring physical, romantic and/ or emotional attraction to members of the same and/ or opposite sex.” Harris addresses gender identity, which GLAAD defines as “a person’s internal, deeply held sense of their gender.” According to Gallup, 4.5 percent of the U.S. population identifies as LGBTQ in 2019, meaning that these cases could provide Title VII protection to over 11 million individuals.
 
A Divided Federal Government
The Supreme Court must evaluate Title VII while navigating the complex—and often contradictory—legal landscape regarding LGBTQ employment discrimination. Perhaps the best demonstration of this contradiction is in the federal government. The U.S. Equal Employment Opportunity Commission (EEOC) held that Title VII protected gender identity (2012) and sexual orientation (2015) as subsets of “sex” and began administering claims on those grounds. In 2018 alone, the EEOC received 1,811 sexual orientation/ gender identity discrimination cases (double those in 2013) and resolved 2,101 such cases with awards totaling $6.1 million. Thus, the EEOC not only recognizes LGBTQ protection under Title VII but is increasing enforcement.
 
The U.S. Department of Justice (DOJ), on the other hand, submitted an amicus curiae brief and argued before the Supreme Court on behalf of employers. Its position, in part, is that the ordinary definition of “sex” does not include sexual orientation or gender identity, and Congress—not the Supreme Court—should clarify the scope of Title VII.
 
As a result, two federal agencies have taken diametrically opposed positions, underscoring the need for Supreme Court intervention.
 
The Recent Federal Circuit Court Split
The federal circuit courts are equally divided on the issue. Historically, cases held that Title VII did provide protection based on an individual’s sexual orientation. Scrutiny of this case law intensified in 2015, due, in part, to the Obergefell v. Hodges decision recognizing same-sex marriage and the EEOC’s recognition that Title VII applies to sexual orientation and gender identity. Thus, a circuit split was born:

• The Second Circuit (Zarda), Sixth Circuit (Smith v. City of Salem), and Seventh Circuit (Hively v. Ivy Tech Community College of Indiana) held that sexual orientation and/ or gender identity falls within Title VII protection; and
• The Fifth Circuit (Wittmer v. Phillips 66), Tenth Circuit (Etsitty v. Utah Transit Authority), and Eleventh Circuit (Evans v. Georgia Regional Hospital and Bostock) found that sexual orientation and/or gender identity do not.

Because of these decisions, the Supreme Court faces a nearly even, though still developing, circuit split regarding Title VII’s protection against employment discrimination based on sexual orientation and gender identity.
 
A Patchwork of State and Local Antidiscrimination Laws
Given the uncertainty surrounding Title VII’s protections for LGBTQ individuals, some states have legislatively enacted statutes to incorporate protections at the state level. According to the Human Rights Campaign and the Movement Advancement Project, the patchwork consists of the following:

• Twenty-one states, two territories, and Washington, DC, prohibit discrimination based on sexual orientation and gender identity;
• One state prohibits discrimination based on sexual orientation;
• Two states interpret existing statutes on sex discrimination to include sexual orientation and/or gender identity;
• Seven states prohibit discrimination against public employees based on both classifications; and
• Four states prohibit discrimination against public employees based on sexual orientation.

The states are therefore evenly split on the issue. Currently, 26 states and three territories have no state protections against LGBTQ employment discrimination, leaving these employees to rely principally on Title VII.

This data raises two important caveats. First, the Supreme Court’s decisions will affect state-level antidiscrimination laws to the extent that they rely on the EEOC for investigation and enforcement. If the Supreme Court finds that Title VII does not cover gender identity or sexual orientation, the EEOC could no longer assist the states. Second, municipal and county ordinances may offer protection where no statewide law exists. According to the Movement Advancement Project, roughly half the states have at least one city or county with its own nondiscrimination ordinance. These ordinances, however, have a varying impact due to population density. For example, in West Virginia, a dozen cities have such ordinances, but those ordinances encompass only 12 percent of the state’s population.

Collectively, federal Title VII cases, state statutes, and municipal or county ordinances create a complicated patchwork of employment discrimination protection for LGBTQ Americans, with geography being a determining factor.
 
Conclusion: The Stage Is Set for Change
This term, the Supreme Court will evaluate the piecemeal protections currently in place and decide whether discrimination against an employee because of sexual orientation or gender identity constitutes prohibited employment discrimination “because of…sex” within the meaning of Title VII. It remains to be seen how Bostock, Zarda, and Harris will change our legal and social landscape. It is certain, though, that these landmark decisions will undoubtedly reverberate well beyond employment law.