Key decision coming in sexual orientation, gender identity employment discrimination

Q&A with Charlie Plumb

published in The Oklahoman | October 8, 2019

For years, the question of whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on one’s sexual orientation or gender identity has remained unresolved.  Today, after years of competing interpretations on the topic by various courts and governmental entities, the U.S. Supreme Court is set to hear three cases on the topic — R.G & G.R. Harris Funeral Homes Inc. v. EEOC; Bostock v. Clayton County; and Altitude Express Inc. v. Zarda.

In a business Q&A with The Oklahoman, labor and employment attorney Charlie Plumb explained the while Title VII prohibits employment discrimination because of “sex,” it does not expressly define that term.  As a result, discrimination laws can vary by city, state and court jurisdiction.

“For example, the city of Norman adopted an ordinance outlawing such discrimination, while Oklahoma state law does not address sexual orientation and gender identity employment discrimination,” said Plumb.  “Federal courts have split on whether Title VII of the Civil Rights Act of 1964 protects gay and transgender individuals against employment discrimination, and the Tenth Circuit Court of Appeals — the federal appeals court that applies to Oklahoma employers — has not yet addressed the issue.”

In the four years that have passed since the U.S. Supreme Court legalized same-sex marriage, the composition of the court has changed, making it hard to predict the final outcome, he said.

“Regardless of the Supreme Court’s decision regarding the federal law, employers should anticipate more states and cities passing laws addressing sexual orientation and gender identity rights when it comes to applicants and employees,” said Plumb.