The Supreme Court will consider whether a federal civil rights law barring workplace discrimination on the basis of sex provides protections for gay and transgender employees.
The court on Monday said it would take up a trio of cases involving Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Two of the cases raise the question of whether Title VII prohibits discrimination on the basis of sexual orientation, while the third centers on whether the law bars discrimination based on gender identity.
One of the cases involves a skydiving instructor, Donald Zarda, in New York who argued he was fired because of his sexual orientation. Zarda, who is gay, was terminated from the skydiving company, Altitude Express, after a woman accused him of touching her inappropriately and disclosing his sexual orientation “in an effort to excuse his otherwise inappropriate behavior” during a tandem skydive in 2010.
Zarda subsequently filed a discrimination charge with the Equal Employment Opportunity Commission and said he was terminated because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”
The 2nd U.S. Circuit Court of Appeals sided with Zarda in its ruling and said, “Sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII.”
The second case involves Gerald Bostock, a gay man who said he was fired from his role as child welfare services coordinator for the Clayton County Juvenile Court System because of his sexual orientation.
Bostock began working for Clayton County in 2003 and came to oversee its Court Appointed Special Advocates program.
In 2013, Bostock began participating in a gay recreational softball league, through which he promoted volunteer opportunities with the Clayton County Court Appointed Special Advocates program. In April 2013, Bostock was informed Clayton County was conducting an audit of the program’s funds, and he was fired in June for “conduct unbecoming of a county employee.”
Bostock, however, argued that upon learning of his sexual orientation and participation in the gay recreational softball league, the county falsely claimed he mismanaged public money “as a pretext for terminating his employment because of his sexual orientation.”
He filed a lawsuit in federal district court in Georgia alleging he was terminated because of his sexual orientation in violation of Title VII.
The 11th U.S. Circuit Court of Appeals, however, sided with Clayton County and reaffirmed an earlier ruling that found discrimination based on sexual orientation is not a violation of Title VII.
Both Bostock and Zarda’s cases are consolidated and will be argued together in the court’s next term, which begins in October.
The third case, out of Michigan, raises the separate question of whether Title VII’s prohibition on sex discrimination includes discrimination on the basis of gender identity.
That case involves Aimee Stephens, a transgender woman who was fired from R.G. & G.R. Harris Funeral Homes after she told her employer in 2013 she identified as a female and would begin wearing women’s clothing to work.
Stephens filed a discrimination charge with the Equal Employment Opportunity Commission in September 2013 and said she had been fired because of sex and gender identity in violation of Title VII.
A federal district court sided with R.G. & G.R. Harris Funeral Homes. But the 6th U.S. Circuit Court of Appeals ruled the business violated the law when it fired Stephens and found that “discrimination on the basis of transgender … status violates Title VII.”
The justices discussed whether to take up the three cases at numerous conferences over the last few months.
