The U.S. Supreme Court is considering whether to take up three cases that could have far-reaching implications for LGBTQ Americans. Two of the lawsuits seek to answer the question of whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. Title VII specifically outlaws discrimination “based on sex,” and the plaintiffs in the two cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, argue that being discriminated against based on sexual orientation is a type of sex discrimination.
In the Altitude Express case, the U.S. Court Of Appeals for the Second Circuit found that Title VII does protect employees from discrimination based on sexual orientation. In the Bostock case, however, the U.S. Court of Appeals for the Eleventh Circuit found Title VII does not ban discrimination based on sexual orientation. Because of these two contradictory rulings, the Supreme Court is now considering taking up the Altitude Express and Bostock cases together to make a final decision about whether employers are allowed to discriminate against employees based on sexual orientation under Title VII. A third case the Supreme Court is thinking about taking, R.G & G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, seeks to answer the question of whether Title VII protects against discrimination on the basis of gender identity.
The potential ramifications of these cases are enormous. Right now, more than half of U.S. states do not prohibit employment discrimination based on sexual orientation and gender identity. If the Supreme Court finds that Title VII protects LGBTQ employees, workers throughout the country would be protected. But if the Supreme Court determines that federal law doesn’t prohibit discrimination against LGBTQ employees, workers in the 26 states without state laws banning discrimination would be left without protections. The federal government is taking the side of the employers in the cases.
The Supreme Court is expected to decide as early as Monday, January 7 if it will take up any of the cases or if it will let the lower court opinions stand.