During its November 30th case conference, the Supreme Court may decide whether to grant the petitions for leave to appeal in one or more of the three cases seeking review of sexual orientation and transgender rights in the workplace.
In a case on which we have reported as it has wound its way through the courts, the employer in EEOC v. RG & GR Harris Funeral Homes, Inc., seeks to overturn the 6th Circuit Court of Appeals decision that it violated plaintiff/employee Aimee Stephens’ rights when it discharged her after she began presenting as a female at work although she was assigned as a male at birth and worked for a time at the funeral home as a male. Stephens sought to comply with the employer’s dress code for female employees. The funeral home’s owner objected on religious grounds to having an employee whom he regards as a man dressing as a woman.
This case joins two other cases seeking review of whether Title VII protects the rights of employees who claim discrimination based on sexual orientation. In Zarda v. Altitude Express, the 2nd Circuit Court of Appeals held that Title VII’s prohibition on gender discrimination includes sexual orientation as a form of discrimination “because of sex”. The 11th Circuit came to an opposite result in Bostock v. Clayton Construction. Last year, the 7th Circuit Court of Appeals in Chicago held that Title VII prohibits discrimination in employment on the basis of sexual orientation in Hively v. Ivy Tech Community College. Often the Supreme Court will hear an appeal when different Circuits have reached opposite decisions on the same issue.
Meanwhile, the agencies that enforce Title VII continue to shift their position on gender identity and sexual orientation protections in the workplace. The Office of Civil Rights under the Department of Health and Human Services, is circulating a memo urging adoption of a regulation defining “sex” in terms of genitals and chromosomes. The EEOC, which under the Obama Administration supported expansive employee protections, may undergo a shift to the right if Trump successfully appoints conservative Republicans to Commission vacancies. And a decidedly more conservative Supreme Court could dismantle Hively, Zarda and the funeral home decisions.
It could prove to be a very interesting year for gender identity and sexual orientation rights. We will keep you posted.