Attorney Blog, Human Resources

SCOTUS to Rule on LGBT Protections

Attorney Harrison Oldham

You may not know it, but today is a highly anticipated day. Today, October 8, 2019, the U.S. Supreme Court is hearing oral arguments on a trio of cases that will determine whether the nation’s most prominent workplace discrimination statute prohibits employment discrimination against LGBT workers. The issue: whether Title VII’s ban against “sex” discrimination covers claims involving sexual orientation and gender identity. Ideally, when the Supreme Court releases their decisions, employers, nationwide, will finally have a definitive answer regarding the extent of the federal civil rights law as it applies to members of the LGBT community. However, any decisions will likely not be released until 2020.

Two of the cases — Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda — were consolidated because both include claims that employers discriminated on the basis of sexual orientation. A third — R.G. & G.R. Harris Funeral Homes v. EEOC — involves the question of whether existing discrimination laws apply to transgender workers.

The first two cases cover the issue of sexual orientation discrimination. In Zarda v. Altitude Express, Inc, back in February 2018, the 2nd Circuit Court of Appeals held that sexual orientation was covered by Title VII’s protections. The case began when Donald Zarda, who worked as a sky-diving instructor for Altitude Express on New York’s Long Island was fired by his employer.

As part of his job, Zarda would often participate in tandem skydives, where he would be strapped to his customers. During one jump, Zarda attempted to comfort one female client by telling her that he was gay.  The client claimed that Zarda inappropriately touched her and only disclosed his sexual orientation to excuse his behavior. She complained to the company, which in turn fired Zarda for violating company policy. Zarda, however, believed his termination was motivated by his sexual orientation and brought suit against his former employer, including a claim for gender discrimination under Title VII in his lawsuit.

The case made its way to the 2nd Circuit Court of Appeals, which had previously rejected a similar claim on the grounds that Title VII did not explicitly include protections for LGBT workers. However, in Zarda, the 2nd Circuit Court of Appeals concluded that if sexual orientation bias is motivated at least in part by sex, then it is a subset of sex discrimination. Accordingly, because Title VII explicitly outlaws sex discrimination, the court said, it followed that sexual orientation discrimination should be outlawed under the statute.

At about the same time, in May 2018, the 11th Circuit Court of Appeals rejected a very similar argument and concluded that Title VII’s prohibition against employment discrimination based on sex does not cover sexual orientation discrimination.  In Bostock v. Clayton County, Georgia,  Gerald Bostock worked as a child welfare services coordinator for the Clayton County’s Juvenile Court System before being fired for purported irregularities discovered during an internal audit of the funds he managed. He filed suit under Title VII claiming that the real reason he was let go involved sexual orientation bias. Bostock cited disparaging comments made to him at work after it was alleged that his employer discovered that he was playing in a gay recreational softball league. However, the court of appeals rejected the argument.

As for the third case, Stephens v. R.G. & G.R. Harris Funeral Homes, Inc., the 6th Circuit Court of Appeals ruled that employers cannot discriminate against transgender and transitioning employees without violating Title VII.  In Stephens, Aimee Stephens, a transgender woman who was born biologically male, began work as a funeral director for R.G. & G.R. Harris Funeral Homes in Detroit, Michigan. At the time, she presented as a man and used her then-legal name, William Stephens.BT

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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