On October 8, 2019, the United States Supreme Court is set to hear a trio of cases that present related questions about the scope of Title VII, the federal civil rights legislation that prohibits discrimination in employment. The consolidated case of Zarda v. Altitude Express and Bostock v. Clayton County will determine whether sexual orientation discrimination is a form of sex discrimination, while Harris Funeral Homes v. EEOC will determine whether anti-transgender discrimination is a form of sex discrimination. Title VII does not expressly prohibit discrimination based on sexual orientation, gender identity, or transgender status. In this trilogy, the Supreme Court will decide whether the prohibition of discrimination based on sex includes LGBT factors as well. Because the federal courts of appeal are split on this important legal question, the Supreme Court’s decisions in these cases should provide some much needed clarity.
Although the litigation is set to determine whether Title VII, which covers workplace discrimination, applies to cases of anti-LGBT discrimination, the ruling in these cases will affect all federal laws barring discrimination on the basis of sex, including Title IX of the Education Amendments of 1972 and the Fair Housing Act. The Supreme Court’s decisions could also affect how many states interpret their state civil rights legislation. In Michigan, for example, 25 years ago the Michigan Court of Appeals considered the meaning of the word “sex” in the specific context of the Elliott-Larsen Civil Rights Act. In Barbour v Department of Social Services, 198 Mich App 193 (1993), a plaintiff asserted that harassment based on his sexual orientation violated the Act. The Michigan Court of Appeals rejected that conclusion, holding instead that “harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the act.” The court thus did not read the phrase “because of sex” in the Act to mean because of sexual orientation or gender identity. Nonetheless, the Michigan Department of Civil Rights accepts and processes charges of discrimination based on sexual orientation or gender identity, and Michigan’s Attorney General has expressed doubt about the Barbour decision. It is likely that the Supreme Court’s decisions in the pending Title VII cases will influence Michigan state law as well.
We expect the United States Supreme Court to issue its opinions in this trilogy of cases sometime in early 2020. Watch for a follow up post on the impact of the opinions after they are issued.