As many of our readers may know, last week the Supreme Court heard an extraordinary two hours of oral argument in a pair of closely watched cases that could reshape federal discrimination law.  Both cases seek to determine the scope of Title VII’s prohibition on discrimination “because of . . . sex.”  The first argument consolidated two cases, Altitude Express v. Zarda and Bostok v. Clayton County. 

In both of those cases, the plaintiffs are gay men who allege that they were fired because of their sexual orientation.  In the second case, Harris Funeral Homes v. EEOC, the plaintiff alleges that she was fired based on her gender status – in other words, because she is transgender. Together, the cases ask the Court to decide whether Title VII prohibits discrimination against LGBTQ employees.

Analysts have noted the potential for the decisions in these cases to make strange bedfellows out of the justices.  One may think that the more conservative justices would be opposed to finding that Title VII includes protections for LGBTQ employees.  However, the Court’s conservative justices also tend to focus on the literal text of the law, and thus will have to address the fact that the gay plaintiffs, as Justice Kagan put it, were fired for being men who love men and would not have been fired for being women who love men.  On its face, that looks like discrimination because of a person’s sex. 

On the other hand, the more liberal justices will have to overcome the fact that when Congress passed the Civil Rights Act of 1964, prohibiting discrimination based on sex, it is unlikely that it intended to prohibit discrimination against LGBTQ employees.  As Justice Ginsburg noted during oral argument, in 1964, the American Psychiatric Association specifically listed “homosexuality” as a mental illness.

If the Court decides that discrimination against LGBTQ employees is sex discrimination prohibited by Title VII, the effects will be immediate.  We have written in the past about the development of successful legal theories that center on discrimination based on sexual orientation, including “sex plus” cases where plaintiffs successfully argued that conduct based on sex “plus” – the additional factor of being a LGBTQ individual – indeed was discrimination.  A favorable decision by the Court will mean that discrimination claims by LGBTQ employees are treated the same way as all Title VII discrimination claims, including those based on gender and other categories like race or national origin.  In response, employers who do not already prohibit discrimination based on LGBTQ status will need to revise their discrimination policies.  Equally important, employers will also need to immediately train employees on how to comply with new anti-discrimination policies.

On the other hand, if the Court’s decision holds that LGBTQ employees are not covered by Title VII, employers can expect things to remain relatively the same.  Many jurisdictions already bar discrimination on the basis of LGBTQ status, so employers will still need to comply with those state and local laws where applicable.  And, of course, employers may implement their own anti-discrimination policies that prohibit discrimination based on sexual orientation or gender identity. 

It is reasonable to expect that there would be fewer discrimination claims by LGBTQ employees in such a scenario, but we may also see courts respond by recognizing new creative legal theories that provide relief to LGBTQ plaintiffs.  As hard as it may be to believe, there also could be a response from Congress to modify or change the decision through the legislative process if it disagrees with the Court’s decision.  All this is to say that the decision is unlikely to be the last word on discrimination protections for LGBTQ workers.

The court heard argument in these cases on October 8, 2019.  A decision is expected as soon as February or as late as June.