Supreme Court to Address Employment Discrimination Based on Sexual Orientation and Gender Identity

Since the Civil Rights movement of the 1960s, individuals have been protected from employment discrimination on the basis of race, religion, and sex. The Supreme Court will soon decide whether sexual orientation and gender identity are also protected when it comes to employment rights. This post will review the relevant law and some legal background, then discuss the cases at stake in the Supreme Court.

Title VII of the Civil Rights Act of 1964

Title VII forbids discrimination in any aspect of employment, including hiring and firing, transfer, promotion, compensation, and benefits. It reads:

“It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title VII and many other anti-discrimination laws. If employees feel they have been discriminated against, they can file a charge with the EEOC, which will attempt to mediate the dispute before filing a lawsuit.

Legal Background

Title VII does not explicitly prohibit discrimination based on sexual orientation, gender identity, or transgender status. Federal courts historically adopted a narrow reading of “sex,” rejecting LGBTQ discrimination claims unless the claimants could prove discrimination based on sex stereotyping.

However, federal courts have become divided on the issue. As far back as 2004, the Sixth Circuit Court maintained that transgender rights are protected, and more recently, the Second and Seventh Circuit Courts have held that Title VII protects gender identity. The Fifth Circuit has asserted that the law was not intended to extend to claims of discrimination based on sexual orientation. The EEOC has taken the position that discrimination based on “sex” includes LGBTQ status, while the Department of Justice has argued that “sex” should be read more narrowly.

The Supreme Court Case

Three cases, representing the judicial split on the issue, will be argued in the Supreme Court at the same time. The first two cases address sexual orientation, and the third considers transgender status.

In Altitude Express v. Zarda, an employee at a skydiving company told a female employee he was gay to assuage her concerns about close physical contact during skydiving; the company subsequently fired him. The trial court dismissed the case, but the Second Circuit sided with the employee and held that “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

The Eleventh Circuit reached the opposite conclusion in Gerald Bostock v. Clayton County Georgia. An employee was terminated from his job as a child welfare worker after the county learned he was gay. The trial court dismissed the case and the Eleventh Circuit upheld the trial court’s opinion, ruling that Title VII does not prohibit discrimination based on sexual orientation.

In these two cases, the Supreme Court will determine “Whether the prohibition in Title VII … against employment discrimination ‘because of … sex’ encompasses discrimination based on an individual’s sexual orientation.”

The third case, Harris Funeral Homes v. EEOC, involved transgender rights and includes a possible religious/conscience component. Aimee Stephens worked at a funeral home for several years, presenting as a man, but later told her employer that she was transitioning and wanted to wear women’s clothes. The owner fired Stephens because he believed that allowing Stephens to wear women’s clothing to work violated the funeral home’s dress code, and that gender transition “violates God’s commands.” The Sixth Circuit Court ruled that while transgender status is not protected under Title VII, Stephens had a viable claim that the funeral home discriminated based on sex stereotyping.

In this case, the Supreme Court will review: “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping…”


Twenty-one states, including Colorado, have anti-discrimination laws protecting individuals from employment discrimination based on gender identity or sexual orientation, but there is no federal mandate on the issue at this time. The Supreme Court decision will likely be handed down mid-2020.

In the meantime, you may wish to seek legal counsel if a possible LGBTQ discrimination dispute arises in your place of work.


Featured Image by Rebecca Sidebotham.

Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations