NEW A vastly improved search engine helps you find the latest on companies, business leaders, and news more easily.<doc-sep>For a trio of anti-LGBT discrimination cases, the issue revolves around the meaning of one word: sex. A same-sex marriage supporter waves a rainbow pride flag near the Supreme Court, on April 28th, 2015, in Washington, D.C., just days before the Supreme Court heard arguments on same-sex marriage. (Photo: Drew Angerer/Getty Images) On Monday, the Supreme Court announced that it would hear several cases deciding whether federal protections apply to LGBT people—specifically, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of "race, color, religion, sex or national origin." For each of these cases, the issue revolves around the meaning of one word in that list: sex. As writer Rebecca Buckwalter-Poza explained in Pacific Standard: The Supreme Court established the current frame for reviewing sex discrimination claims nearly 30 years ago. In 1989, in Price Waterhouse v. Hopkins, the Supreme Court ruled that sex stereotyping—i.e., imposing expectations about how persons should act based on sex—constitutes gender and sex discrimination under Title VII, the workplace analog to Title IX that prohibits employers from discriminating on the basis of sex. A later Supreme Court decision clarified that Title VII covers all discrimination motivated by sex, including acts perpetrated against someone of the same sex. Ever since, plaintiffs have asked the courts to consider whether sex-based discrimination includes anti-LGBT discrimination. Now, the Supreme Court has a chance to settle that question, starting with two discrimination lawsuits: Altitude Express Inc. v. Zarda and Bostock v. Clayton County, in which two employees allege they were fired because of their sexual orientation. The justices also agreed to decide whether Title VII applies to discrimination against transgender people based on their status or sex stereotyping. How have different legal bodies already interpreted this framework, and what can we expect in the future? Equal Employment Opportunity Commission This federal agency has been at the forefront of the push to extend protections under Title VII to gay, transgender, and non-binary people. According to a court order, the EEOC argued that "sexual orientation is inherently a sex‐based consideration" for the first time in 2015. Lawyers for the EEOC have continued to argue that gay employees should be protected under Title VII: In Altitude Express Inc. v. Zarda, lawyers for the EEOC sided with the plaintiff, now-deceased sky-driving instructor Donald Zarda, arguing that he faced gender discrimination stemming from the stereotype that people are attracted to the opposite sex, Kate Wheeling reported for Pacific Standard. Trump Administration In keeping with its proposed rollbacks of LGBT protections, the Trump administration has opposed efforts to extend Title VII to gay and transgender employees. In response to Altitude Express Inc. v. Zarda, the Department of Justice filed a brief urging the Second Circuit Court of Appeals to rule in favor of Zarda's employer. Department of Justice lawyers stated that "the EEOC is not speaking for the United States and [its] position about the scope of Title VII is entitled to no deference beyond its power to persuade," according to the non-partisan Constitution Center. Appellate and District Courts Although many appellate and district courts have excluded LGBT people from Title VII protections, according to the New York Times, some have applied the ruling on sex discrimination in cases involving an LGBT plaintiff. Most recently, the Second Circuit Court of Appeals in New York held that "Zarda is entitled to bring a Title VII claim for discrimination based on sexual orientation." But in Georgia, in the second case taken up by the Supreme Court, the Eleventh Circuit ruled that it could not overturn a previous ruling that "[d]ischarge for homosexuality is not prohibited by Title VII." Supreme Court The Supreme Court has declined to take cases deciding the sex discrimination question in the past. Now that the court has decided to take up the question, it's clear that this is not the same court that legalized same-sex marriage in 2015: Independent policy groups have noted that conservative Justice Neil Gorsuch has a record of ruling against protections for LGBT communities; meanwhile, Justice Brett Kavanaugh raised flags for LGBT advocates when he punted on a same-sex marriage question in his confirmation, the Washington Post reports.<doc-sep>“Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.” “I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming,” Judge Lynch wrote. “Because we all know that Congress did no such thing.” The arguments in the Second Circuit had a curious feature: Lawyers for the federal government appeared on both sides. One lawyer, representing the E.E.O.C., said Title VII barred discrimination against gay people. Another, representing the Trump administration, took the contrary view. The Georgia case was brought by a child welfare services coordinator who said he was fired for being gay. The 11th Circuit, in Atlanta, ruled against him in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.” The justices also agreed to decide the separate question of whether Title VII bars discrimination against transgender people. The case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107, concerns Aimee Stephens, who was fired from a Michigan funeral home after she announced in 2013 that she was a transgender woman and would start working in women’s clothing. “What I must tell you is very difficult for me and is taking all the courage I can muster,” she wrote to her colleagues. “I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness.” Ms. Stephens had worked at the funeral home for six years. Her colleagues testified that she was able and compassionate.<doc-sep>Kathryn Maloney | Moment | Getty Images The Supreme Court on Monday took up job discrimination cases that could for the first time resolve at a national level whether lesbian, gay, bisexual and transgender workers can be fired based on their identity. The cases come as federal courts as well as independent agencies within the Trump administration remain divided over whether Title VII of the Civil Rights Act, which says that employers may not discriminate based on "sex," prohibits discrimination based on sexual orientation and gender identity. There is no national law that explicitly bars discrimination on those grounds. State and local laws barring such discrimination do exist. About half of the country's LGBT population lives in states that allow employment discrimination based on sexual orientation or gender identity, according to MAP, an LGBT advocacy think tank. "The impact of this decision will have very real consequences for millions of LGBTQ people across the country," Sarah Warbelow, the legal director for the Human Rights Campaign, the nation's largest LGBTQ civil rights organization, said in a statement. The Trump administration has argued before the Supreme Court that Title VII does not apply to LGBT individuals. Meanwhile, the Equal Employment Opportunity Commission, which is also a part of the administration, maintains the opposite stance. Last term, the Supreme Court had the opportunity to hear a case on the issue but declined. "There's definitely a lot at stake here," James Esseks, a civil rights attorney who served served as counsel in Obergefell v. Hodges, the landmark 2015 case affirming the right to same-sex marriage, told CNBC over the summer. "Are LGBT people protected from discrimination in a way that most other people in the country are, or are we not?" While the court has never ruled on whether employers may discriminate on sexual orientation, in the 1989 case Price Waterhouse v. Hopkins the court held that it is impermissible to discriminate based on gender stereotypes. Jason Habinsky, a partner in the Labor and Employment Practice Group in the New York office of Haynes and Boone, said that a ruling granting protection to LGBT employees would not affect many companies who already have policies in place shielding them from discrimination. For other companies, he said, it could be a wake-up call. "This could serve as an alarm bell for certain employers who are not yet protecting those rights, and who fall in those pockets of the country where there are no laws and no protections," Habinsky said. The Kavanaugh effect and case histories The cases are the first on the issue of LGBT rights before a newly constituted court following the retirement of Justice Anthony Kennedy in July. Kennedy was a champion of gay rights on the court. His replacement on the bench by Justice Brett Kavanaugh could be significant in the court's eventual decision on the matter. Sarah Kate Ellis, the CEO of GLAAD, an LGBTQ advocacy group, wrote in a post on Twitter that Trump's appointment of "anti-LGBTQ judges" made it "clear that we need a constitutional amendment that protects LGBTQ people and all marginalized communities." GLAAD tweet The sexual orientation cases concern two employees who argue that they were fired for being gay. In one case, Altitude Express v. Zarda, No. 17-1623, Donald Zarda, who was a skydiving instructor, sued his former employer and alleged that he was fired because of his sexual orientation. Zarda died in an October 2014 base-jumping accident, but his family pressed forward with the case on his behalf. In early 2018, the U.S. 2nd Circuit Court of Appeals ruled in his favor. A 10-4 majority found that discrimination on the basis of sexual orientation violates the Civil Rights Act. In another case, Bostock v. Clayton County, Georgia, No. 17-1618, a child welfare services coordinator is suing Clayton County, a Georgia county south of Atlanta, for terminating him in 2013 after discovering his involvement in an LGBT softball league.<doc-sep>
WASHINGTON — The Supreme Court said Monday it will decide whether existing civil rights laws ban discrimination on the basis of sexual orientation, a question that has divided the nation's lower courts. Federal law forbids workplace discrimination on the basis of race, color, religion, sex or national origin. It does not explicitly apply to LGBT individuals, but gay rights advocates have argued that firing employees because of their sexual orientation is already prohibited as a form of sex discrimination under Title VII of the Civil Rights Act. They've been hoping to achieve in the courts what they have so far been unable to get in Congress — a nationwide ban on job discrimination. The cases accepted Monday reflect the split among federal courts. Two appeals courts ruled that employers violated Title VII by firing gay and transgender employees. A third said civil rights laws don't cover sexual orientation. For decades, every federal appeals court to consider whether gay employees are entitled to nondiscrimination protection ruled that they are not. But advocates of LGBT rights argued that support for that position has been eroding. In 1989, the Supreme Court said Title VII bans discrimination based on an employee's failure to act according to sex-based expectations, ruling for a woman denied a promotion who was told to walk, talk and dress femininely, wear makeup and jewelry, and have her hair styled. In 1998, the court ruled that a heterosexual offshore oil rig worker could sue for sex discrimination even though he was sexually harassed by other men on the job. Congress didn't have that kind of discrimination in mind when the civil rights law was passed in 1964, the Supreme Court said, but "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils." The federal Equal Employment Opportunity Commission concluded in 2015 that Title VII does protect against LGBT job discrimination. President Barack Obama's Justice Department took the same position, but under President Donald Trump it reversed course, opposing that conclusion. Among the cases to be heard next term are an appeal from a ruling in favor of a New York skydiving instructor, Donald Zarda, who said he was fired after telling a female client that he was gay so she shouldn't worry about being strapped tightly against him during the dive. The 2nd Circuit Court of Appeals said sexual orientation discrimination is a subset of sex discrimination. The 6th Circuit Court of Appeals said a woman who worked for a Michigan funeral home was impermissibly fired two weeks after she told her employer she was transgender. Her employer said she did not follow the dress code, but the court said transgender discrimination is prohibited by Title VII. "Discrimination 'because of sex' inherently includes discrimination against employees because of a change in their sex," it said. In the third case, the 11th Circuit Court of Appeals ruled against a Georgia man who lost his job with Clayton County after his participation in a gay softball league became known to his employer. That court said the civil rights law does not cover sexual orientation discrimination. Because of the split among the lower courts, advocates on both sides of the issue were urging the Supreme Court to correct what they said were erroneous rulings. Mara Keisling, executive director of the National Center for Transgender Equality, said the Supreme Court's decision to take the case "is a historic turning point for transgender people across this country." "Americans decided long ago that no person should have to fear losing their job because of who they are, and we hope the Supreme Court understands its responsibility to uphold established law and this enduring American value," Keisling said in a statement. The court will hear the cases in its next term, which begins in October.