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By Lindsey E. Krause
Associate Attorney

U.S. Supreme Court to Decide if Employers Can Discriminate Based on Sexual Orientation and Gender Identity

The U.S. Supreme Court announced on Monday that it will hear three employment discrimination cases during its October term, deciding whether discrimination on the basis of “sex” protects employees from discrimination at work based on their sexual orientation and gender identity.

Lower federal courts are split on the issue, which is illustrated in the three cases to be decided. Two of the cases involve sexual orientation discrimination. In Altitude Express, Inc. v. Zarda, the Second Circuit Court of Appeals ruled that Title VII of the Civil Rights Act prohibited a skydiving company from discriminating against one of its instructors because he was gay. In Bostock v. Clayton, the Eleventh Circuit Court of Appeals ruled the opposite way, finding that the law did not protect a child welfare services coordinator from discrimination based on his sexual orientation.  In the third case, R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, the Sixth Circuit Court of Appeals found that the law protected a transgender funeral director from discrimination based on her gender identity. 

There is also a split in how this issue is treated in President Trump’s Executive Branch. For example, the Equal Employment Opportunity Commission has stated that it will continue to protect individuals experiencing gender identity or sexual orientation discrimination. The Department of Justice, however, has expressed the opposite view. In October 2017, the Department issued a memo indicating that Title VII’s prohibition on sex discrimination does not protect employees against discrimination based on gender identity.

Given the conservative tone of the Supreme Court, it might be easy to be pessimistic about the outcome of these upcoming cases. However, there is hope for LGBTQ employees.  Many cities and states are acting independent of federal law to provide anti-discrimination protections for these marginalized groups. For example, under the Minnesota Human Rights Act, it is illegal for an employer to discriminate on the basis of sexual orientation. See Minn. Stat. § 363A.08. Furthermore, the City of Minneapolis prohibits discrimination based on gender identity, and the City of Saint Paul prohibits discrimination on the basis of sexual or affectional orientation. See Minneapolis Code of Ordinances, Title 7, Chapter 139.40(b); Code of Ordinances of the City of Saint Paul, Title XVIII, Chapter 183, Sections 183.02(9), 183.03.

Nichols Kaster has, and always will, support, protect, and fight for the rights of LGBTQ individuals.

Photo by Pavel Nekoranec on Unsplash