- The U.S. Supreme Court has received yet another request that it decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against LGBT employees (R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, No. 18-107).
- The petition came after the 6th U.S. Circuit Court of Appeals held in March that discrimination, either because of a failure to conform to sex stereotypes or transgender and transitioning status, is prohibited by Title VII. The employer had fired an employee, who previously presented as a man, when she said she would begin presenting as a woman at work, adhering to the dress code for women. Adverse employment actions based on sex stereotyping have long been considered sex discrimination and the court concluded that "[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex."
- The Supreme Court late last year declined to address a similar question in Evans v. Georgia Regional Hospital (No. 15-15234 (11th Cir. 2017), cert. denied, No. 17-370) but in June received another petition (Zarda v. Altitude Express, Inc., No. 17-1623) that it has not yet answered.
With a split emerging among the federal appellate courts, employers will eventually need some clarity. Even the federal government remains at odds with itself over the issue: The U.S. Equal Employment Opportunity Commission takes the position that Title VII does prohibit discrimination based on sexual orientation and gender identity and is enforcing it as such, while the administration — including the U.S. Department of Justice which represents the government in these cases — disagrees.
For now, employment law attorneys have generally been advising that employers refrain from discriminating against applicants and employees on this basis. But help could come sooner rather than later, Kenneth M. Willner, a partner with Paul Hastings LLP, told attendees last week at the National Employment Law Institute's 42nd annual Employment Law Update in Washington, D.C.; the circuit split tees this up for the Supreme Court to get involved, he said, and "likely sometime soon."
Alternatively, some have called on Congress to step in and settle the issue via legislation.