Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on “sex.” Most federal courts have interpreted Title VII to exclude sexual orientation discrimination. The Eleventh Circuit falls into this camp. Since its predecessor’s 1979 decision in Blum v. Gulf Oil Corp., 597 F.2d 936, 937 (5th Cir. 1979), the Eleventh Circuit has steadfastly held to its view that “discharge for homosexuality is not prohibited.” Id. The rationale being that Title VII speaks only of a person’s sex and not sexual orientation. Against this textual backdrop, it is the legislature’s job to extend Title VII if it sees fit. See Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017) (discussing view that sexual orientation is not a cognizable claim under Title VII.
In 2017, the Seventh Circuit was the first to break from this approach, concluding that a lesbian job applicant could sue an Indiana community college for discrimination. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). The Second Circuit soon followed, deepening the circuit split. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018).
Adding to the confusion, the executive branch has taken different positions on the scope of Title VII. The Obama-era EEOC held transgender workers are protected by Title VII in a 2012 federal sector case. The Justice Department agreed in a 2014 memo, concluding the law applies to gender identity. This harmony was short-lived. The department rescinded its memo in 2017 and now says gender identify is not protected. The Justice Department that year also argued in a brief that Title VII doesn’t apply to sexual orientation, which clashes with the EEOC’s view.
The Supreme Court has decided to end the uncertainty. Consolidating several cases, the Court will address two questions:
- whether Title VII bars sexual orientation discrimination; and
- whether Title VII bars discrimination against transgender people.
These questions are likely to divide the Court, and could further highlight the impact of Justice Kavanaugh’s confirmation to succeed Justice Kennedy, who usually backed gay rights.
Impact for Employers
Regardless of the dynamics at play, the ruling on these issues could have far-reaching effects. Either the Supreme Court will uphold the status quo for employers in the Eleventh Circuit, or create a whole new dynamic for gay, lesbian, bisexual and transgender employees.
The consolidated cases up for review are Bostock v. Clayton County, 17-1618; Altitude Express v. Zarda, 17-1623; and R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, 18-107.
Stay tuned to this blog for updates as this issue is addressed.