Federal employment law doesn't protect workers from discrimination based on sexual orientation, the U.S. Department of Justice (DOJ) argued in a brief to the Supreme Court on Aug. 23.
The DOJ submitted its argument to the high court in two consolidated cases that ask whether Title VII of the Civil Rights Act of 1964 covers sexual orientation under its protection against sex-based discrimination in the workplace.
"For more than 40 years, Congress has repeatedly declined to pass bills adding sexual orientation to the list of protected traits in Title VII," the DOJ argued. The department's lawyers said that the ordinary meaning of "sex" is biologically male or female and doesn't include sexual orientation. An employer discriminates on the basis of sex under Title VII "if it treats members of one sex worse than similarly situated members of the other sex. Discrimination on the basis of sexual orientation, standing alone, does not satisfy that standard," the DOJ asserted.
The Equal Employment Opportunity Commission (EEOC), however, has taken the opposite position, arguing that Title VII protections cover lesbian, gay, bisexual and transgender (LGBT) workers. A third case before the Supreme Court asks whether federal law protects workers from discrimination based on transgender status. The EEOC and DOJ are divided on that issue as well.
Oral argument in the trio of cases is set for Oct. 8.
We've rounded up the latest news on sexual orientation discrimination. Here are SHRM Online resources and news articles from other trusted media outlets.
Appellate Courts Divided
The cases present the Supreme Court justices with their first major exploration of LGBT rights since the high court legalized same-sex marriage in 2015. Lower courts have disagreed on whether Title VII covers sexual orientation and gender identity, so the Supreme Court agreed to hear the cases and attempt to resolve the split among federal appeals courts.
(The Wall Street Journal)
[SHRM members-only toolkit: Managing Gender Transition in the Workplace]
2nd Circuit Says Sexual Orientation Protected
In one of the cases before the Supreme Court, Altitude Express Inc. v. Zarda, a gay skydiving instructor alleged that he was fired in 2010 because of his sexual orientation. Skydiving clients were bound to instructors before a jump and he a told a female client, "Don't worry, I'm gay" to ease any discomfort. The client's boyfriend, however, complained that the instructor touched her inappropriately and tried to excuse his behavior by saying he is gay. The skydiving company suspended and then fired him for making the passenger uncomfortable. A trial court relied on case law that Title VII does not encompass sexual-orientation discrimination and a three-judge panel of the 2nd U.S. Circuit Court of Appeals affirmed. However, the 2nd Circuit agreed to rehear the case before all the court's judges and reversed its position, finding that Title VII does cover sexual orientation. The 7th Circuit has also ruled that Title VII does prohibit such discrimination.
(SHRM Online)
11th Circuit Says Title VII Doesn't Protect LGBT Workers from Bias
In Bostock v. Clayton County, Ga., a court child welfare services coordinator alleged that he was fired because he's gay. He argued that the county falsely accused him of mismanaging public funds to cover up the real reason he was fired. The 11th U.S. Circuit Court of Appeals, however, found that Title VII doesn't prohibit employers from discriminating against workers based on sexual orientation.
(SCOTUSblog)
Companies Urge High Court to Ban LGBT Discrimination
More than 200 businesses signed a brief calling on the Supreme Court to rule that Title VII prohibits discrimination based on sexual orientation and gender identity. The companies represent more than 7 million employees and more than $5 trillion in revenue and include household names such as General Motors, Marriott International Inc. and The Walt Disney Company, plus several in the tech sector.
(SHRM Online)
Many States Protect LGBT Workers from Bias
When it comes to employment protections for LGBT workers, dealing with the hodgepodge of state and local laws and conflicting interpretations of federal law can be daunting for employees and employers alike. To ease confusion and provide clarity, businesses should consider adopting the most inclusive policies, employment law attorneys said.
(SHRM Online)