Pride and Prejudice: Supreme Court Takes on Gender Identity & Sexual Orientation Discrimination


It's been proven time and time again that having a diverse and inclusive workplace is not only the right thing to do, but it's also good for business. If that's not reason enough to welcome a range of employees in your organization, federal law under Title VII of the Civil Rights Act of 1964 mandates that employers not discriminate "because of … race, color, religion, sex, or national origin." Courts have also interpreted Title VII to prohibit harassment based on these characteristics and to bar employers from retaliating against employees who complain of discrimination. Other federal laws provide similar protections against discrimination on the basis of age and disability and against retaliation for asserting these rights. Despite these laws, some groups, such as the LGBTQ+ community who do not conform to heteronormative expectations, face deep-seated prejudice and discrimination in the workplace and otherwise. This fall, the Supreme Court has decided to tackle whether Title VII's protections based upon "sex" apply to LGBTQ+ workers.

Recent developments, such as the ban on LGBTQ+ in the military and United States Supreme Court permitting businesses to refuse to serve LGBTQ+ patrons, are cause for concern. Further, many federal appellate courts around the country that have been confronted with the issue of whether Title VII bars employment discrimination against LGBTQ+ people have concluded that the language does not extend that far, however select courts have ruled in favor of employment protections for sexual and gender minorities under Title VII. To complicate matters, the federal government itself is divided on whether the law protects LGBTQ+ employees with the Equal Employment Opportunity Commission ("EEOC") contending that Title VII does protect these workers, while the military, the U.S. Department of Health and Human Services and the Department of Justice argue the contrary.

So far the Courts of Appeals for the Second and Fifth Circuits, sitting in New York and Chicago, respectively, have held that discrimination against gay and lesbian employees is a violation of Title VII's ban against "sex" discrimination. The Second Circuit stated that: "sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination." In contrast, a Court of Appeals for the Eleventh Circuit, sitting in Atlanta, held that "discharge for homosexuality is not prohibited by Title VII." The Supreme Court has also agreed to hear a case involving the question of whether Title VII protects transgender persons from employment discrimination arising out of the firing of an employee who informed her employer that she was transgender and going forward would dress as a woman. The employer is challenging the decision of the Court of Appeals for the Sixth Circuit, sitting in Cincinnati, which held: "It is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex."

If the Supreme Court concludes that Title VII gender or "sex" discrimination does not embrace sexual orientation and gender identity, it will be a painful setback for many members of our community and a significant loss to our workplaces. But it is important to note that, even in the absence of federal protection, LGBTQ+ individuals may be protected by state and local law. For example, in Philadelphia, where our firm has its principal office, the Third Circuit Court of Appeals has held that Title VII does not protect workers from sexual orientation discrimination, but the Pennsylvania Human Relations Commission, which enforces the Commonwealth's non-discrimination law, treats complaints of employment discrimination against members of the LGBTQ+ community as sex discrimination. In addition, the Philadelphia Code expressly protects against discrimination in employment and in other areas based upon sex, sexual orientation and gender identity.

For our LGBTQ family, friends and neighbors who are not protected by the state and local law, Title VII protection is essential. The Supreme Court should not be buffeted by political winds to contort the plain language of the statute forbidding discrimination "because of … sex" to deprive our fellow Americans of the rights and privileges that should be guaranteed to all people in a free country.