Photo: Beatrice Murch via Flickr (CC by 2.0)

The US Supreme Court recently announced it accepted three cases that will determine the scope of “sex” discrimination under federal law.  Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful for employers to discriminate against employees on the terms and conditions of employment because of such individual’s “race, color, religion, sex, or national origin.”  The Equal Employment Opportunity Commission (EEOC) which is the agency that enforces Title VII takes the position that “sex” discrimination under federal law prohibits treating someone unfavorably because of that person’s sex and this includes treatment because of someone’s gender identity, including transgender status, and someone’s sexual orientation.  Many states and localities with anti-discrimination laws have specifically added the protected categories of sexual orientation or gender identity or both to their discrimination laws.

The Supreme Court has consolidated two of the three accepted cases for briefing and oral argument.  Bostock v. Clayton concerns whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII.  Altitude v. Zarda also involves whether the prohibition in Title VII against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.

The third case is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity CommissionIn that case, the Supreme Court will determine whether Title VII prohibits discrimination against transgender persons based on (1) their status as transgender or (2) sex stereotyping under the Court’s earlier decision in Price Waterhouse v. Hopkins.

After about 13 conferences, the Supreme Court finally accepted these three cases and will decide the scope of the term “sex” as used under federal Title VII.  The Circuit Courts are split on the interpretation of this protected category so these decisions will impact federal law as it applies to the workplace.  Because New Hampshire and Massachusetts already include sexual orientation and gender identity in their anti-discrimination laws, this case may not result in significant changes for employers to policies and practices currently in place in these states.  However, damages employees may recover differ under federal and some state laws so a decision including these categories in the term “sex” under Title VII could impact employers later found in violation.

The cases will be heard by the Supreme Court during its next term that starts in October 2019.