On April 22, 2019, the Supreme Court granted petitions for writs of certiorari in three LGBT employment cases. Each of the three cases addresses whether Title VII of the Civil Rights Act of 1964 offers protection against discrimination in employment on the basis of sexual orientation or gender identity.
In Bostock v. Clayton County, Georgia, the Plaintiff, Gerald Lynn Bostock, claims his sexual orientation as a gay man was the reason for his termination from Clayton County as a Child Welfare Services Coordinator. The District Court ruled that he had no viable claim because Title VII does not prohibit discrimination on the basis of sexual orientation. The Eleventh Circuit established the precedent that discrimination on the basis of sexual orientation is not a form of sex discrimination protected by Title VII.
In contrast, the Second Circuit Court of Appeals held in Zarda v. Altitude Express, Inc., that sexual orientation is protected under Title VII, because the Supreme Court has ruled previously that gender stereotyping violates the statute. The Second Circuit held discrimination based on sexual orientation was an “actionable subset of sex discrimination” because you cannot address sexual orientation without consideration of the individual’s gender and the related stereotypes.
In R.G. & G.R. Harris Funeral Homes v. EEOC, et al., the Sixth Circuit also held that Title VII protects employees who are transgender. Employee Aimee Stephens was terminated when she informed her coworkers that “she was undergoing a gender transition from male to female and intended to dress in appropriate business attire to work as a woman.” Two weeks later she was terminated because the funeral home owner thought he would be “violating God’s commands” by allowing Stephens to dress in women’s clothing. The federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens.