{"id":2680,"date":"2019-04-24T17:10:10","date_gmt":"2019-04-24T17:10:10","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2680"},"modified":"2019-04-24T17:10:10","modified_gmt":"2019-04-24T17:10:10","slug":"supreme-court-to-hear-landmark-lgbtq-cases","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2019\/04\/24\/supreme-court-to-hear-landmark-lgbtq-cases\/","title":{"rendered":"Supreme Court to Hear Landmark LGBTQ Cases"},"content":{"rendered":"On Monday April 22, 2019, the Supreme Court of the United States has agreed to hear three cases which seek rulings on whether sexual orientation, transgender status, and transitioning status are protected under Title VII of the Civil Rights Act<\/a><\/em> after years of courts and government agencies taking conflicting positions on this landmark issue. The Supreme Court will likely issue decisions on these hot button cases in 2020 at the beginning of the next presidential election race.\n\nTitle VII makes it unlawful for an employer to discriminate against any individual \u201cbecause of\u201d the individual\u2019s sex. While it is understood that the phrase \u201cbecause of sex\u201d includes gender stereotyping<\/a><\/em>, the law remains in flux<\/a><\/em> as to whether discrimination \u201cbecause of sex\u201d includes discrimination based on sexual orientation, transgender status<\/a><\/em>, and transitioning status.\n\nNumerous courts and federal government agencies have taken opposing stances on this issue. For example, the Department of Justice<\/a><\/em> (\u201cDOJ\u201d) has filed an amicus brief<\/a><\/em> arguing that discrimination based on sexual orientation is not encompassed as discrimination \u201cbecause of sex\u201d under Title VII. The DOJ\u2019s brief directly conflicts with the Equal Employment Opportunity Commission<\/a><\/em>\u2019s (\u201cEEOC\u201d) stance, as articulated in an amicus brief<\/a><\/em>, which contends that sexual orientation falls squarely within Title VII\u2019s prohibition on the basis of sex. The EEOC argued in its amicus brief<\/a><\/em> \u201can employer cannot discriminate against an employee based on that employee\u2019s sexual orientation without taking the employee\u2019s sex into account \u2013 precisely what Title VII forbids.\u201d\n\nThe three cases that the Supreme Court agreed to hear, R.G. & G.R<\/em>.,<\/a> Zarda<\/em><\/a>, and Bostock<\/em><\/a>, will collectively shape the future of LGBTQ rights in the workforce. In R.G. & G.R<\/em>., the Sixth Circuit held that discrimination on the basis of transgender and transitioning status violated Title VII. In Zarda<\/em>, the Second Circuit held that the plaintiff was entitled to bring a Title VII claim for discrimination based on sexual orientation. In contrast, in Bostock<\/em>, the Eleventh Circuit held that a plaintiff failed to state a claim for sexual orientation discrimination under Title VII and couched its ruling in prior Eleventh Circuit precedent.\n\nSuch circuit splits have become all but commonplace in today\u2019s legal landscape. Some federal courts have found that sexual orientation is a protected class under Title VII as a proxy for \u201csex\u201d or as a form of gender stereotyping. For example, the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana<\/a><\/em> that Title VII\u2019s prohibition on discrimination because of sex includes sexual orientation because \u201cthe common-sense reality\u2026[is that it is] actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.\u201d Other federal courts have had contrary findings. For instance, the Eleventh Circuit in Evans v. Georgia Regional Hospital<\/em> adhered to a strict textual analysis of Title VII and concluded that sexual orientation is not protected because it is not one of the specifically enumerated protected classes in Title VII<\/a><\/em>. The Fifth Circuit in O\u2019Daniel v. Industrial Service Solutions <\/em>likewise explained \u201cTitle VII in plain terms does not cover \u2018sexual orientation<\/a><\/em>.\u2019\u201d\n\nThe Supreme Court\u2019s guidance on these issues is significant. Their decision will provide long-awaited clarity for courts, agencies, employers, and employees regarding the parameters of LGBTQ rights in the workforce. Additionally, the Supreme Court\u2019s ruling will likely reshape employment policies and training procedures to ensure compliance and mitigate potential liability. While awaiting the Supreme Court\u2019s decisions on these monumental issues, employers should remain cognizant of local anti-discrimination laws because Title VII\u2019s enumerated protections are a floor and not a ceiling, as states are free to grant additional protections beyond federal laws. Various local county<\/a><\/em> and municipal<\/a><\/em> jurisdictions have done just that and now explicitly include sexual orientation, gender identity, and gender expression as protected categories.\n\n \n\n\"DeedeeAbout the author<\/strong>: Deedee Bitran is an employment and business litigation attorney at Shutts & Bowen LLP. Deedee represents employers, business owners and developers in an array of matters including sexual harassment, discrimination, retaliation, non-competition, and wage and hour disputes. Outside of the courtroom, Deedee provides clients with solutions to employment-related issues, advises on how to avoid or minimize litigation, drafts employment contracts, and offers day-to-day advice on management concerns. Since Deedee\u2019s graduation from Florida Internal University College of Law where she graduated in the top 6% of her class, she has published in five Law Review journals and received an international writing award. Her articles have been published in the Harvard Law & Policy Review, the Oxford Business Law Blog, the Florida Bar Business Law Section Blog, the Florida International University Law Review, the National Law Review, the Saint Thomas Law Review, the Women\u2019s Rights Law Reporter, and the Elon Law Review.\n\n \n\nSuggested citation: Deedee Bitran, Supreme Court to Hear Landmark LGBTQ Cases<\/em>, <\/span>Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter<\/span>, (Apr. 24, 2019), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/supreme-court-to-hear-landmark-lgbtq-cases\/<\/a>.<\/span>","protected":false},"excerpt":{"rendered":"

On Monday April 22, 2019, the Supreme Court of the United States has agreed to hear three cases which seek rulings on whether sexual orientation, transgender status, and transitioning status are protected under Title VII of the Civil Rights Act after years of courts and government agencies taking conflicting positions on this landmark issue. The…<\/p>\n","protected":false},"author":1,"featured_media":2685,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,18],"tags":[484,555,708,953,954,1357,1537],"class_list":["post-2680","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-feature","tag-discrimination","tag-employmentlaw","tag-gayrights","tag-lgbt-rights","tag-lgbtq-rights","tag-scotus","tag-title-vii"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2680","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2680"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2680\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2685"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2680"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2680"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2680"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}