Supreme Court Asked to Review Sexual Orientation Discrimination Case

Allen Smith, J.D. By Allen Smith, J.D. June 4, 2018

​The U.S. Supreme Court has been asked once again to decide whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination to resolve a split among the appeals courts. In December of 2017, the court declined to review this issue in one appeals court case deciding that Title VII does not ban such discrimination. Now an employer is asking it to decide the issue in another appeals court case ruling that Title VII does.

We've rounded up the latest news on sexual orientation discrimination. Here are SHRM Online resources and news articles from other trusted media outlets.

Sexual Orientation Bias Prohibited, One Appeals Court Rules

In Altitude Express Inc. v. Zarda, a skydiver, now deceased from a skydiving accident, alleged that he was fired because he was gay. The 2nd U.S. Circuit Court of Appeals, which covers Connecticut, New York and Vermont, decided that Title VII bans discrimination based on sexual orientation, as did the 7th Circuit last year. On May 29, Altitude Express asked the Supreme Court to review the 2nd Circuit's decision, but there's no guarantee the high court will grant the petition.

(Bloomberg Law)

Another Petition Before the Court

In another petition filed with the Supreme Court, a plaintiff is asking the court to review the same issue in an 11th Circuit decision that sexual orientation was not prohibited by Title VII, Bostock v. Clayton County, Ga.

(JD Supra)

EEOC and Justice Department Sparred in 2nd Circuit Case

In Altitude Express Inc. v. Zarda, the Equal Employment Opportunity Commission (EEOC) advocated for a broad reading of Title VII that encompassed sexual orientation. But the Justice Department argued that Title VII's prohibition on sex discrimination did not extend to claims of sexual orientation discrimination. The 2nd Circuit ruled that sexual orientation should be treated as a subset of sex discrimination for several reasons:

  • Sexual orientation is defined by someone's gender and the gender of the person to whom that individual is attracted.
  • Sexual orientation discrimination is based on assumptions or stereotypes about how members of a particular gender should behave, including to whom they should be attracted.
  • Sexual orientation discrimination is discrimination based on someone's association with someone else solely because of that other person's gender.

(SHRM Online)

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Court Declined to Review Earlier 11th Circuit Case

The Supreme Court announced Dec. 11, 2017, that it would not review the 11th Circuit's decision in Evans v. Georgia Regional Hospital that Title VII does not ban sexual orientation discrimination. Its announcement was not a determination on the merits; it simply left the 11th Circuit's decision in place. The high court may wait to see how other appeals courts rule on the issue before granting review on this issue, some speculated.

(SHRM Online)

EEOC Settlement in Sexual Orientation Case

During the Obama administration, the EEOC reached a settlement in a sexual orientation discrimination case on June 23, 2016. A lesbian forklift operator alleged that her manager harassed her with lewd gestures and unwelcome comments such as "I want to turn you back into a woman," "I want you to like men again," "You would look good in a dress" and "Are you a girl or a man?" The EEOC sued on her behalf after she was fired. Pallet Cos., doing business as IFCO Systems, agreed to hire a subject matter expert on sexual orientation, gender identity and transgender training to develop training on sexual orientation and sexual identity issues in the workplace. The EEOC intended to use this training in future settlements.

(SHRM Online)

EEOC Chair Nominee Suggests Possible Change in Agency's Position

EEOC Chair Nominee Janet Dhillon wouldn't commit during a congressional hearing last fall to support the EEOC's position that Title VII bars sexual orientation discrimination. She noted that the Justice Department and the EEOC have taken different positions and that there is a split in the courts. Her nomination and that of EEOC Commissioner Nominee Daniel Gade still await Senate confirmation.

(SHRM Online and Bloomberg Law)


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