Title VII of the Civil Rights Act of 1964 is the federal law that prohibits employers from discriminating on the basis of race, color, religion, sex, and national origin. Although the law explicitly bans "sex" discrimination, as written and later amended, it does not specifically include "sexual orientation" or "gender identity" as protected categories. As a result, federal Courts of Appeals have been split on whether Title VII's ban on sex discrimination protects LGBT employees. This has resulted in conflicting opinions from the federal Courts of Appeals.
On Monday, April 22, 2019, the United States Supreme Court announced that it would review three cases to determine whether Title VII's ban on sex discrimination includes discrimination on the basis of an employee's or job applicant's sexual orientation and/or gender identity. If the Court determines that LGBT employees are protected from discrimination, then the ruling will become federal law.
Background on conflicting cases
In the first of the three cases, a U.S. Court of Appeals in New York ruled in favor of a gay skydiving instructor who claimed he was fired because of his sexual orientation. That court noted that "legal doctrine evolves," and found that sexual orientation discrimination is a subset of sex discrimination under federal law.
The second case involved the termination of a gay employee of Clayton County, Georgia. The County argued that the employee was terminated because of the results of an audit of funds he managed. The Court of Appeals ruled for the County, and declared that "discharge for homosexuality is not prohibited by Title VII."
In the third case, a Michigan-based funeral home employer fired its funeral home director two weeks after she announced she was a transgender woman and would start wearing women's clothing. The employee was hired six years prior, and her employment records identified her as a man. The funeral home owner stated his belief that allowing the employee to wear women's clothing would violate the funeral home's dress code policy and would be "violating God's commands." The Court of Appeals ruled in favor of the employee, finding that she was discriminated against based on sex.
The United States Supreme Court will resolve these conflicts when it hears and considers this issue. We anticipate a ruling no later than June 2020. Interestingly, Congress is currently considering a bipartisan bill, the Equity Act, which would enact specific statutory protections in favor of the LGBT community in a host of contexts (not just employment). However, until the Act is passed, the Supreme Court's decision on the issue will govern protections that the LGBT community will receive in the workplace under federal law.
With regard to California employers, it is critical to note that the state's Fair Employment and Housing Act specifically prohibits discrimination on the basis of "sexual orientation," "gender identity," and "gender expression." For California employers, who are covered by this state law, the Supreme Court's decision will have no legal impact, since compliance with California law is mandatory for them. However, the Supreme Court's decision will impact employers in other states who do not currently afford any protections for LGBT employees, as well as California employers who fall under narrow exemptions to our state's laws (e.g., religious non-profit entities).
Our firm will continue the monitor the Court's consideration of these three cases and will provide updates as they become available.
If you have any questions regarding the issues discussed in this edition of Compliance Matters, please call your firm contact in California at (818) 508-3700 or in North Carolina at (704) 765-1409, or visit us online at www.brgslaw.com.
James H. Demerjian
John J. Manier
Ballard Rosenberg Golper & Savitt, LLP