Skip to Main Content
By Michelle L. Kornblit
Associate Attorney

U.S. Supreme Court Will Hear Major LGBTQ+ Rights Cases Next Term

June is Pride Month—a month to celebrate the LGBTQ+ community.  This month also honors the 50th anniversary of the Stonewall Riots, the historic 1969 uprising of the LGBTQ+ community against police harassment in Greenwich Village, New York, which launched the modern LGBTQ+ rights movement.

While we celebrate the history of the LGBTQ+ rights movement and advances towards achieving freedom and equality, the fight is far from over—particularly in the employment sphere. Although many states, including Minnesota, protect employees from employment discrimination based on sexual orientation, “sexual orientation” is not an independent protected status under Title VII of the Civil Rights Act of 1964, the major federal law prohibiting discrimination in employment. 42 U.S.C. § 2000e, et seq.

This spring, the Supreme Court of the United States announced that it will hear three cases in its next term on whether Title VII protects LGBTQ+ employees.

In Altitude Exp., Inc. v. Zarda, Donald Zarda alleged that he was terminated because he is gay, in violation of Title VII.  In 2018, the Second Circuit Court of Appeals held that Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of ... sex.”  883 F.3d 100 (2d Cir. 2018), cert. granted sub nom. Altitude Exp., Inc. v. Zarda, No. 17-1623, 2019 WL 1756678 (U.S. Apr. 22, 2019).  The court reasoned:

. . . sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination. Looking first to the text of Title VII, the most natural reading of the statute’s prohibition on discrimination “because of . . . sex” is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.

With this holding, the Second Circuit joined the Seventh Circuit Court of Appeals, which ruled the same in Hively v. Ivy Tech. 853 F.3d 339 (7th Cir. 2017).

The Zarda case will be consolidated with the second case involving the rights of LGBTQ employees, Bostock v. Clayton County, Georgia.  Gerald Bostock brought suit against his employer alleging that after the county learned he was gay, it falsely accused him of mismanaging public money in order to provide a pretext to terminate his employment. On appeal, the Eleventh Circuit Court of Appeals applied prior circuit precedent that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton Cty. Bd. of Commissioners, 723 F. App'x 964 (11th Cir. 2018), cert. granted sub nom. Bostock v. Clayton Cty., Ga., No. 17-1618, 2019 WL 1756677 (U.S. Apr. 22, 2019). The court stated: “. . . we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued.” Id.

In the third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, the EEOC brought a Title VII action against a funeral home alleging that the employer fired a transitioning, transgender employee based on gender stereotypes in violation of Title VII’s proscription on sex discrimination.  In March 2018, the Sixth Circuit Court of Appeals held that because the employer fired the employee because she refused to abide by her employer’s stereotype driven conception of her sex, the EEOC was entitled to summary judgment as to its unlawful-termination claim under Title VII. Equal Employment Opportunity Comm'n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), cert. granted in part sub nom. R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., No. 18-107, 2019 WL 1756679 (U.S. Apr. 22, 2019).

The Supreme Court’s resolution of these cases will have an enormous impact on the advancement of the rights and protections of LGBTQ+ employees in the workplace.  All workers, regardless of their sexual orientation or gender identity, deserve to be treated fairly at work. We at Nichols Kaster hope the Supreme Court expands protections for LGBTQ+ employees under Title VII, and that we have further reason to celebrate during Pride Month in 2020.

Nichols Kaster’s Individual Practice Group represents LGBTQ+ employees facing discrimination at work. Click here for more information.

Photo by Sharon McCutcheon on Unsplash