On April 22, 2019, the Supreme Court of the United States agreed to review three cases to decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation or an individual’s status as transgender (or transitioning).
The Court will review the Sixth Circuit Court of Appeals case of R.G. & G.R. Harris Funeral Homes v. EEOC, dealing with an employee who was allegedly fired because she was transitioning from male to female. In that case, the Sixth Circuit ruled that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” and “discrimination on the basis of transgender and transitioning status violates Title VII.”
As a result, the Supreme Court will consider “[w]hether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).” The Supreme Court’s ruling may give transgender individuals in all federal circuits Title VII’s protections. It remains to be seen whether the Court will do so through the bright-line rule adopted by the Sixth Circuit or an extension of the more context-specific stereotyping theory established in Price Waterhouse.
Next term, the Supreme Court will also hear the cases of Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda , which originated out of the Eleventh and Second Circuits, respectively. These cases involve claims that employees were allegedly discharged because of their sexual orientation. The Supreme Court will determine whether discrimination against an employee because of sexual orientation constitutes discrimination “because of . . . sex” as prohibited by Title VII. This issue is the topic of a current circuit split with only the Second and Seventh Circuits currently recognizing protection for sexual orientation within Title VII.
Oral arguments on these cases could be as early as the fall of 2019, although no date has been set yet.
Written by Joshua P. Lushnat of Ogletree Deakins
© 2019 Ogletree, Deakins, Nash, Smoak and Stewart, P.C.