On April 22, 2019, the Supreme Court of the United States chose to hear arguments in three cases involving LGBT employees – Altitude Express v Zarda, Bostock v Clayton County, and RG & GR Harris Funeral Homes v EEOC. These cases are from different jurisdictions: the Second Circuit, Eleventh Circuit, and Sixth Circuit, respectively.
In Altitude Express, an employee alleged that he was terminated from his employment based on his LGBT status. The trial court determined that Title VII does not allow for legal claims regarding discrimination on the basis of sexual orientation, but the Second Circuit Court of Appeals reversed, holding that sexual orientation discrimination is a “subset” of sex discrimination.
In Bostock, the plaintiff alleged that, after his government employer discovered he was gay, the government falsely accused him of mishandling public money as a pretext for firing him. The trial court and the Eleventh Circuit Court of Appeals both found that Title VII does not apply to claims of discrimination based on sexual orientation.
In RG & GR Harris Funeral Homes, an employee was terminated after the employee, whose employment records identified him as a man, notified the employer that the employee identified as a woman and wanted to wear women’s clothing to work. The employer’s reason for termination was that he believed allowing the employee to wear women’s clothing would violate the funeral home’s dress code, as well as the notion that allowing the employee to wear women’s clothing would violate God’s commands. The trial court granted summary judgment to the employer, but the Sixth Circuit Court of Appeals sided with the employee, holding that termination of the transgender employee was gender stereotyping incompatible with Title VII.
The Supreme Court often rules on issues that, as here, involve a circuit split regarding important legal questions. The Supreme Court will hear arguments and render opinions regarding these three cases next term, which is in Fall 2019.
Lusk Albertson will keep a very close eye on these cases, as they are virtually certain to have a major impact on legal claims involving allegations of LGBT discrimination in the workplace. Specifically, they are likely to determine whether employees will be able to bring a Title VII claim against employers when the underlying basis is an allegation of employment discrimination on the basis of LGBT status. Even where employers do not engage in LGBT discrimination, a ruling for the employees would force employers to incur legal costs defending against such legal claims. Stay tuned.