Because of . . . sex

On October 8, 2019, the U.S. Supreme Court heard oral argument on whether existing federal law prohibits discrimination based on an individual’s sexual orientation or transgender status.

Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.”  Federal courts of appeal have reached different conclusions regarding the scope of this phrase. Some have found the existing law protects lesbian, gay, bisexual and/or transgender individuals from discrimination based on their sexual orientation.

Three federal cases are being considered by the U.S. Supreme Court. Altitude Express, Inc. v. Zarda, originating from the Second Circuit Court of Appeals, and Bostock v. Clayton County, Georgia, originating from the Eleventh Circuit Court of Appeals, present the question whether Title VII’s prohibition of employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation. The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., originating from the Sixth Circuit Court of Appeals, addresses whether the phrase “sex” includes “transgender status.”

At present, the Tenth Circuit Court of Appeals, the federal appellate court encompassing Oklahoma, does not recognize sexual orientation as a protected status under Title VII. However, the Tenth Circuit has stated that individuals are protected from discrimination when they are mistreated for failing to conform to gender stereotypes.

It is hard to predict how the high court will rule. But it is entirely possible that sexual orientation and transgender status may soon become protected characteristics under federal anti-discrimination laws. Employers should keep a close eye on the Supreme Court’s decision on these cases, and as always, consult with an employment attorney regarding any inquiries about handbook provisions, equal employment policies, and best practices.