We may know by the end of this month.

According to a report in yesterday’s Bloomberg BNA Daily Labor Report, the Supreme Court will consider, and hopefully decide, on November 30 whether to review lower court decisions addressing whether sexual orientation and gender identity discrimination violate Title VII of the Civil Rights Act of 1964.

Title VII prohibits discrimination based on “sex.” Until relatively recently, most federal courts said that “sex” discrimination was not the same as discrimination based on sexual orientation, and maybe not the same as discrimination based on gender identity.

However, in the past couple of years, some courts have overruled their prior decisions. In 2012, the Equal Employment Opportunity Commission decided for the first time that gender identity discrimination violated Title VII, and since that time it has taken the position that all LGBT discrimination violates Title VII. 

There have been many attempts to enact federal legislation specifically protecting LGBT rights, but so far they have failed.

Here are the three cases that the Court will consider taking up on November 30:

Zarda v. Altitude Express (aka “the gay skydiver case”). The U.S. Court of Appeals for the Second Circuit ruled that sexual orientation discrimination does violate Title VII. The employer petitioned for review by the Supreme Court.

Bostock v. Clayton County (GA). The U.S. Court of Appeals for the Eleventh Circuit ruled that sexual orientation discrimination does not violate Title VII. Mr. Bostock petitioned for review by the Supreme Court.

Don’t know your circuits without a scorecard? Check our handy guide!

EEOC v. R.G. & G.R. Harris Funeral Homes. The U.S. Court of Appeals for the Sixth Circuit ruled that gender identity discrimination does violate Title VII. The funeral home petitioned for review by the Supreme Court. This case is a little awkward for the U.S. government because the EEOC (which won at the Sixth Circuit) continues to take the position that LGBT discrimination violates Title VII. Meanwhile, the U.S. Department of Justice under the Trump Administration — which would be responsible for “representing” the EEOC before the Supreme Court — disagrees with the EEOC.

(President Trump’s nominees for the EEOC have not been confirmed by the Senate, so the EEOC is still made up entirely of Obama appointees.)

As a result of the disagreement between the two agencies, the DOJ recently asked the Supreme Court to defer ruling in the RG-GR case until after it had decided Zarda and Bostock (or decided not to review those cases). 

The very next day, Acting EEOC Chair Victoria Lipnic was quoted in Law360 as saying that she thought the Supreme Court should review the case, because “I’m always in favor of clarity.” 

I kid you not. These agencies can’t agree on anything!

Like Victoria Lipnic, I am pro-clarity. I really do hope that the Supreme Court takes up all three cases and resolves the LGBT/Title VII issue once and for all.

But, then, what would I have to blog about? 

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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