How Will SCOTUS’ Upcoming Cases Affect Title VII?

Each of the three cases involves allegations by employees that they were terminated because of their sexual orientation or gender identity. Two of the three cases involve differing decisions among the federal appellate courts. SCOTUS consolidated a 2^nd Circuit opinion finding “sex” encompasses discrimination on the basis of “sexual orientation,” and an 11^th Circuit opinion finding it does not. The third case arises from termination of a transgender employee after she announced she would begin wearing women’s clothing and is an appeal from the 6^thCircuit holding transgender falls within the protected status of “sex” under Title VII.

The federal appellate courts are split: the 2^nd and 6^th Circuits hold Title VII discrimination defines “sex” to include sexual orientation and gender identity, while the 8^th, 10^th and 11^th Circuits hold Title VII does not pertain to sexual orientation, gender identity or transgender. The 7^th and 9^th Circuits have issued conflicting decisions. The 4^th Circuit has not ruled on the issue but, in 2016, referred to Title VII definitions of “sex,” stating “hard and fast binary division on the basis of reproductive organs is not universally descriptive” in finding that a transgender student has a cause of action under Title IX if a school refuses to give him access to the bathroom that corresponds to his gender identity.

Many employers think the current SCOTUS may rule in line with those federal appellate circuits finding Title VII discrimination does not include sexual orientation or gender identity based on the recent decisions involving bakeries who refused to prepare wedding cakes for same-sex couples on the grounds of religious freedom. Employers should understand that SCOTUS has already determined sex discrimination prohibited by Title VII includes same-sex harassment or employment decisions based on failing to act within gender-based expectations in Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), respectively. While SCOTUS recently determined religious freedom of retailers must be considered in conjunction with civil rights of patrons in two cases involving cake bakers who refused to make wedding cakes for gay couples, the section of civil rights law applicable to retailers, Title II, does not list “sex” as a protected class. Conversely Title VII, applicable to employers, specifically includes “sex” or “gender” as protected classes.

Additionally, the Equal Employment Opportunity Commission (EEOC), the gatekeeper adjudicating all Title VII claims filed before they proceed to litigation, already interprets gender identity and sexual orientation as part of “sex” under Title VII. The EEOC has awarded $6.4 million in monetary relief in voluntary resolutions involving LGBT Charges since it began collecting data in 2013. The EEOC stated in its 2012 Strategic Enforcement Plan that “lesbian, gay, bisexual and transgender employees” are protected under “Title VII’s sex discrimination provisions.”

While human resource professionals await SCOTUS’ rulings in October 2019, from a prevention and risk management standpoint, employers should ensure that they are currently treating discrimination or harassment on the basis of sexual orientation or gender identity as discriminatory conduct in violation of Title VII, and should ensure that any written policies or practices are updated accordingly.