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SCOTUS Takes Up Sexual Orientation Discrimination

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administrationâ  s asylum policy â  an Obama judge.â   â  We do not have Obama judges or Trump judges, Bush judges or Clinton judges,â   Roberts said in a statement. â  What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.â   (Photo by Chip Somodevilla/Getty Images)
By George Khoury, Esq. on April 23, 2019 3:00 PM

This week, the United States Supreme Court decided to take up a series of Title VII cases about whether sexual orientation and gender identity are protected under federal employment discrimination laws.

The case law, at this point, has basically found that sexual orientation and gender identity fall under sex or gender discrimination, as discriminating against a person’s sexual orientation or gender identity is one and the same as discriminating based on their gender or sex. The EEOC has affirmed that position, however, the DOJ and employers that espouse religious views that are intolerant of the LGBTQ community, have been fighting to exclude sexual orientation and gender identity discrimination claims from Title VII's purview.

The Cases

In Altitude Express v. Zarda, the plaintiff, a sky-diving instructor, sued under Title VII after being terminated for being gay. The trial court initially dismissed the case, but the U.S. Second Circuit Court of Appeals reversed that decision, explaining that sexual orientation discrimination is a subset of sex discrimination.

In Harris Funeral Home v. EEOC, a transgender funeral director employee was dismissed after disclosing plans to transition sexes. The EEOC field a discrimination lawsuit based upon Title VII, and the Sixth Circuit Court of Appeals has upheld the employee's right to proceed with their claim.

The third case SCOTUS has taken up, Bostock v. Clayton County, unlike the Harris and Zarda cases, is the one creating the circuit split (thanks 11th Circuit). The appeals court upheld a trial court’s decision to dismiss a Title VII claim brought on behalf of a child-welfare worker based on sexual orientation.

Notably, the case on transgender rights will be argued separately from the other two cases, which have been consolidated for oral argument at the High Court. However, the result of one might inform the others, particularly as the lower appellate courts seemed to have agreed that sexual orientation and gender identity discrimination are subsets of sex and gender discrimination, as the later presupposes the former.

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