Employers have long known that gender stereotyping is not allowed under Title VII of the Civil Rights Act’s prohibition on discrimination because of sex. However, there has been some confusion over whether this prohibition also covers sexual orientation and gender identity discrimination, including claims that being gay, lesbian, or transgender constitutes nonconformity with a gender stereotype.

Circuit courts have been split on whether it is lawful for employers to terminate employees based on their sexual orientation (who you are attracted to) and gender identity (what sex you identify as). The U.S. Supreme Court has agreed to settle the issue. The high court heard oral arguments on October 8, 2019, and a decision is expected at any moment.

Evolving Trends

In 1964, when Title VII of the Civil Rights Act was drafted, courts initially rejected arguments that Title VII covered sexual orientation.

In 1989, the U.S. Supreme Court, in Price Waterhouse v. Hopkins, found that the sex discrimination provision of Title VII meant that gender stereotyping must be irrelevant to employment decisions.

Then, in 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a memo in Baldwin v. Foxx declaring that Title VII does cover sexual orientation discrimination. Calling prior decisions “dated,” the EEOC’s decision opened the door to further evolution of Title VII.

However, this new broader standard has been met with mixed success, creating the circuit court split that the U.S. Supreme Court has agreed to decide.  

Circuit Court Split

The U.S. Supreme Court is considering a trio of cases – two claiming discrimination based on sexual orientation and a third claiming discrimination based on gender identity (transgender status.) 

Second Circuit: Altitude Express v. Zarda (sexual orientation discrimination)

Donald Zarda, a gay skydiving instructor, brought a sex discrimination claim under Title VII, alleging that he was fired from his job at Altitude Express, Inc., because he failed to conform to “straight male macho stereotypes.” The legal issue was whether the prohibition in Title VII against employment discrimination “because of sex” encompasses discrimination based on an individual’s sexual orientation. The U.S. District Court in New York concluded the answer was “no,” ruling in favor of the employer and finding that Zarda had failed to show that he had been discriminated against on the basis of sex. However, while Zarda’s case was in progress, the EEOC issued its non-binding memorandum in Baldwin v. Foxx that treated sexual orientation discrimination as covered by Title VII. Thus, Zarda appealed to the U.S. Court of Appeals for the Second Circuit and the Second Circuit disagreed with the District Court and held sexual orientation discrimination constitutes a form of discrimination “because of sex” in violation of Title VII.

Eleventh Circuit: Bostock v. Clayton County, Georgia (sexual orientation discrimination)

Gerald Bostock brought a sexual orientation and gender stereotyping claim under Title VII, alleging that he was fired from his job with the County because he was gay. The legal issue was whether Title VII protects gay and lesbian individuals from discrimination if their sexual preferences do not conform to their employer’s views of whom individuals of their respective genders should love. The Eleventh Circuit, clinging to a 39-year-old precedent, Blum v. Gulf Oil Corp (an Eleventh Circuit Court cased decided ten years before the Supreme Court’s decision in Price Waterhouse v. Hopkins) dismissed Bostock’s claim, concluding that Title VII does not prohibit an employer from firing an employee for homosexuality.

Sixth Circuit: R.G. & G.R. Harris Funeral Homes v. EEOC (gender discrimination)

Aimee Stephens brought a sex discrimination claim under Title VII against her employer, R.G. & G.R. Harris Funeral Homes after she was fired for coming out as a transgender woman. The EEOC sued Stephens’ employer on her behalf and the Sixth Circuit Court of Appeals ruled that Stephens’ employer engaged in unlawful sex discrimination when it fired her for being transgender.  

Potential Significance for Employers of SCOTUS Ruling in 3 Cases

In 2011, about 8 million Americans identified as lesbian, gay, or bisexual. Of those who so identified, roughly 25% reported experiencing workplace discrimination because their sexual preferences did not match their employer’s expectations. This is a lot of employees and employers potentially affected by this issue. The huge philosophical divide and the question everyone is asking is whether the Supreme Court will stick with the traditional interpretation or take advantage of what the last half century has taught and evolve with the times?

If Jane never gets fired for taking a romantic interest in men, but Joe gets fired for taking a romantic interest in men, can an employer be liable for sex discrimination? If Jane never gets fired for wearing a dress, but Joe gets fired for wearing a dress, can an employer be liable for sex discrimination? As of now, it is uncertain whether employers can be liable for firing employees for being gay or transgender. This case has far-reaching implications for employers throughout the nation, including Florida. If the Eleventh Circuit interpretation does not hold sway with the U.S. Supreme Court, an employer would no longer be able to lawfully fire Joe for being gay or for wearing a dress.

Regardless of which way the Court comes down, it will likely lay down clear guidelines on what is and what is not considered to be discrimination based on sex and employers can revise employee handbooks, training and orientation materials, and overall approaches to workplace relations accordingly.