Supreme‌ ‌Court‌ ‌Set‌ ‌to‌ ‌Tackle‌ ‌DACA,‌ ‌LGBT‌ ‌Discrimination,‌ ‌Among‌ ‌Other‌ ‌Issues‌ ‌This‌ Term‌
TITLE VII AND SEXUAL ORIENTATION

October 1, 2019 by Dan McCue
U.S. Supreme Court building. (Photo by Dan McCue)

This year’s term begins Monday, Oct. 7, and will extend into late June, encompassing the presidential primaries and ending just before the Republicans and Democrats host their presidential nominating conventions.

As always, one can expect the Justices’ statements from the bench during hearings, the court’s rulings, and the makeup of the majorities in those rulings, to invite intense scrutiny.

Among the high-profile issues they’ll tackle early in the term are the fate of the Deferred Action for Childhood Arrivals (DACA) program and whether Title VII employment discrimination protections extend to members of the LGBT community.


You can read previews of the other cases here:


TITLE VII AND SEXUAL ORIENTATION

The court is wasting no time in getting to three cases dealing with the question of whether Title VII of the Civil Rights Act of 1963 protects employees from discrimination based on their sexual orientation or trans status.  It has scheduled oral arguments on the cases next Tuesday.

In Altitude Express v. Zarda, the Court will review a holding by the en banc Second Circuit that Title VII prohibits discrimination based on an employee’s sexual orientation. After Daniel Zarda sued his former employers, a New York skydiving company, for firing him due to his being gay, the Second Circuit held that Title VII, which prohibits discrimination “because of sex” applied, and that Zarda therefore had properly alleged a valid cause of action.

In the second of the consolidated cases, Bostock v. Clayton County, Georgia, the court will consider the same question, after the Eleventh Circuit decided Title VII protections did not extend to Gerald Bostock, a child welfare services coordinator who argued he was fired from his county job when it was discovered he is gay.

The third case accepted for review raises the question whether Title VII prohibits discrimination based on gender identity or trans status. In R.G. & G.R. Harris Funeral Homes v. EEOC, prior to transitioning and while still presenting as a man, Aimee Stephens had spent several years successfully employed by a small funeral home. Upon notifying the owner that she would be transitioning and would be wearing women’s attire, she was fired in accordance with the employer’s view of “God’s commands.” Stephens prevailed in arguing she was entitled to Title VII protections in the Sixth Circuit. The Supreme Court will consider whether Title VII bars discrimination against employees because of their transgender status.

“What is at stake in these cases is whether or not LGBT employees will be found to have protections against workplace discrimination under federal law,” said Rutgers’ Katie Eyer.

“I don’t think most people realize that there is still no federal law that explicitly includes sexual orientation and gender identity as discrete protected classes for the purposes of employment,” she said.

“All of these cases base their arguments on the fact Title VII, the core federal employment discrimination law, prohibits discrimination ‘because of sex,'” she said. “Here the plaintiffs contend that anti-LGBT discrimination is necessarily also ‘because of sex.'”


You can read previews of the other cases here:

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