Employers can look forward to learning whether sexual orientation and gender identity are covered under federal antidiscrimination law, now that the U.S. Supreme Court has decided to take up three cases that will provide clarity on the issue.
The Court announced on April 22 that it would take the cases—two of which deal with whether Title VII of the Civil Rights Act of 1964 covers sexual orientation and the other to decide if Title VII includes gender identity.
The Court’s rulings will settle disagreement among the federal circuit courts of appeal on the issues:
- One case is from New York and involves a skydiving instructor who said he was fired because he was gay. He has since died, but family members are continuing the case.
- Another case, from Georgia, involves a county government worker who claimed he was fired because he is gay.
- The other case, from Michigan, involves a transgender woman who said she was fired from a job at a funeral home based on her gender identity.
Some federal circuit courts of appeal have ruled that Title VII’s protection against sex discrimination includes protection against discrimination based on sexual orientation and gender identity, but others have ruled that the word “sex” isn’t broad enough to include those characteristics.
Michele L. (Warnock) Brott, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, says the Supreme Court’s rulings should provide answers. She expects a ruling sometime within the next 18 months.
“Currently, there is a divide among the courts,” Brott says. “It is clear that the text of Title VII does not include sexual orientation and gender identity, but the question is whether those characteristics are under the category of ‘sex.’”
Advice for Employers
Brott says many states have laws that already explicitly protect against discrimination based on sexual orientation and gender identity. “If that is the case, the Supreme Court’s decision will not change much, since local law will dictate that individuals cannot be treated differently based on these characteristics,” she says.
But a ruling from the Supreme Court that expands the scope of Title VII will change the picture in states without local laws including sexual orientation and gender identity. In those states, management will need to be trained and be ready to include those characteristics in workplace trainings and handbooks.
Brott says most employers don’t treat their workers differently based on sexual orientation and gender identity, but in some cases, there will be challenges if the Court expands the definitions in Title VII. For example, she says several issues arise in the workplace when employees transition and have a different gender identity than their gender assigned at birth.
“Much attention has been paid to the so-called bathroom issue, but an employer’s involvement involves much more than the bathroom when an employee seeks to be known by a different name, for example,” Brott says.
A common question employers face concerns how they should address religious objections surrounding sexual orientation and gender identity. “This is an important issue that balances individual rights and should be carefully thought through,” Brott says.
Even when the Court’s rulings are issued, the matter may not be settled, Brott says. “If the Court finds that the word ‘sex’ is not broad enough to include these additional groups, then the matter is not closed, as Congress could amend the law and expressly provide protections.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.