Friday, August 23, 2019

Supreme Court to Hear Sexual Orientation and Transgender Cases under Title VII - DOJ Goes Against EEOC

In early October, the Supreme Court will hear two cases that seek to clarify whether Title VII protects against discrimination of employees based on their sexual orientation and gender identity. In R.G. and G. R. Funeral Homes v. EEOC (a case we have reported on as it traveled through the court system), the plaintiff sued her former employer after she notified them that she would begin presenting as a woman upon return from vacation. Prior to the employee's vacation, the employer discharged the worker stating “this is not going to work out” despite the excellent performance record of the employee. The 6th Circuit joined the 7th and 2nd Circuits in holding that Title VII prohibits discrimination based on gender identity.

In Zarda v. Altitude Express, the 2nd Circuit Court of Appeals decided in 2018 that Title VII should be interpreted to prohibit sexual orientation discrimination. The plaintiff, now deceased from a skydiving accident, was a sky-diving instructor who told a female student when he was preparing for a tandem sky-dive that he was "100-percent gay." Her boyfriend complained about the comment, and the plaintiff claimed he was fired because he was gay. The 2nd Circuit held that Title VII already is interpreted to cover sex stereotyping and so should also protect against discrimination based on sexual orientation.

Conversely, the 11th Circuit Court of Appeals ruled in 2018 in Bostock v. Clayton County, Ga., that binding court precedent holds that Title VII doesn't prohibit employers from discriminating against workers based on sexual orientation. The case involved a court child welfare services coordinator who alleged he was fired because he's gay.

Interestingly, although the EEOC argues that Title VII prohibits discrimination on the basis of sexual orientation and gender identity, the Department of Justice has taken the opposite position in each of these cases. The DOJ, by the way, also represents the EEOC.

In any event, rulings on these cases will clarify these issues once and for all with respect to Title VII coverage. In Illinois, though, as in a number of other states, state law prohibits employers from discriminating against workers based on these factors. Regardless of how the Supreme Court rules in these cases, employees in Illinois will remain protected from adverse action based on both of these categories.