The United States Supreme Court has decided to weigh in on the issue of LGBT discrimination. Specifically, whether sex discrimination under Title VII of the Civil Rights Act includes sexual orientation and gender identity.

The Supreme Court will consider three cases: Zarda v. Altitude Express (2nd Circuit), Bostock v. Clayton County, Georgia (11th Circuit), and Stephens v. R.G. & G.R. Harris Funeral Homes Inc. (6th Circuit). Zarda and Bostock involve claims of sexual orientation discrimination. Stephens involves a claim of discrimination based on gender identity.

Second Circuit Says Sexual Orientation is Protected by Title VII

Zarda v. Altitude Express began when Donald Zarda, a sky-diving instructor for Altitude Express, was terminated. The company alleged his termination was based on a violation of company policy. Zarda alleged it was based on his sexual orientation.

Zarda made it a practice to inform his female clients that he was gay in order to ease any concerns that they might have had about being strapped hip-to-hip with a man. One such client made a complaint — alleging Zarda had touched her inappropriately — and the company terminated his employment.

Zarda filed a lawsuit, which eventually made it’s way to the Second Circuit Court of Appeals in February 2018, where the court ruled that if sexual orientation bias is motivated at least in part by sex, then it is a subset of sex discrimination and prohibited by Title VII.

Eleventh Circuit Says Sexual Orientation is Not Protected by Title VII

Bostock v. Clayton County, Georgia resulted from the termination of Gerald Bostock, a child welfare services coordinator for Clayton County’s Juvenile Court System. The County alleged the termination was the result of irregularities discovered during an audit. Bostock alleged the termination was due to discrimination based on sexual orientation, citing comments made to him at work after his employer discovered he was gay. 

Bostock filed a lawsuit against Clayton County, making a similar argument to Zarda. The case was applied to the Eleventh Circuit Court of Appeals, which ruled that Title VII does not prohibit discrimination against Gay and lesbian employees.

Sixth Circuit Says Transgender and Transitioning Employees are Protected by Title VII

Stephens v. R.G. & G.R. Harris Funeral Homes Inc. resulted from the termination of Aimee Stephens, a transgender woman. Stephens was born biologically male and worked as the funeral director for R.G. & G.R. Harris Funeral Homes, always presenting as male.

Stephens informed R.G. & G.R. Harris Funeral Homes, after six years of employment, that she had been struggling with her gender identity and would be getting sex reassignment surgery. Stephens was fired in response to this announcement; the owner stating that it was his sincere belief that a person’s sex is an immutable God-given gift, and that he would be violating God’s commands if he were to allow Stephens to present as a woman.

Stephens files a claim under Title VII alleging gender discrimination on the basis of her sex. The case made it’s way to the Sixth Circuit Court of Appeal, which ruled that Title VII prohibits transgender discrimination based on sex and sex stereotypes.

What’s Next?

Since the current session of the Supreme Court is wrapping up, we won’t be seeing a decision on this issue until later this year or early next year. However, for employers in many states, the outcome at the Supreme Court is a non-issue.

Nearly half the states, including Nevada, already prohibit discrimination on the basis of sexual orientation and gender identity. Employers in Nevada are explicitly prohibited from discriminating against an individual in employment based on sexual orientation and gender identity. These protections have existed since 2011. Additionally, the Nevada DMVrecently announced that it was implementing gender-neutral driver’s licenses and identification cards; allowing residents to choose gender “X” instead of “M” for male or “F” for female Therefore, whatever decision comes from the Supreme Court on this issue, nothing will change regarding the protections that exist for Nevada employees.

Even where protections do not exist under state law for sexual orientation and gender identity, companies are taking the lead by implementing policies that do; Amazon, Apple, and Google to name a few.

NAE will continue to monitor this issue before the Supreme Court as it does with all issues affecting employment. We monitor legislative process, regulatory guidance, and court decisions so you don’t have to. Nevada businesses trust that they are getting the latest information on their rights and obligations as employers from NAE because it’s what we do.