May 2, 2019 – Yesterday was International Workers' Day, celebrating
workers’ rights around the world. It timely follows the U.S. Supreme
Court’s decision last week to hear three landmark cases regarding
the employment rights of gay and transgender individuals.
Title VII of the 1964 Civil Rights Act guarantees protections from workplace
discrimination based on sex, race, color, national origin, and religion.
The question for the Court is whether it also prohibits discrimination
based on sexual orientation or gender identity.
PRO VS. CON
Uncharacteristically, federal agencies argued against each other in the
Second Circuit courts. The Trump Administration has contended that Title
VII doesn’t apply to sexual orientation or transgender status, while
the Equal Employment Opportunity Commission has maintained that it does,
since discrimination based on sexual orientation or gender identity is
inexorably rooted in expectations about a person’s sex.
The interpretation of Title VII in this regard has been a cause célèbre
in appellate courts in recent years, with most interpreting it to exclude
The three cases pending before the Supreme Court are the first concerning
LGBT rights since Justice Anthony M. Kennedy, a strong proponent, retired
in 2018. His replacement, Justice Brett M. Kavanaugh, is one of five conservatives
on the Court. The three cases would therefore be the first to test the
new Court’s approach to LGBT rights.
Two cases involve claims of workplace discrimination based on sexual orientation:
Altitude Express Inc. v. Zarda (No. 17-1623), which ruled in favor of the plaintiff in New York and is
now on appeal, and
Bostock v. Clayton County (No. 17-1618), which is appealing an opposite decision in Georgia.
The third case,
R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (No. 18-107), is a gender identity workplace discrimination suit brought
by a transgender woman in Ohio, appealed by the defendants. It involves
an additional question of discrimination against workers based on conformity
to gender stereotypes, which SCOTUS ruled in 1989 was a form of sex discrimination.
HOW DO EMPLOYERS FEEL?
Last November, 176 companies—representing a total of 7 million employees and a
collective annual revenue of more than $3.2 trillion—signed a letter
urging the Trump Administration to cease the rollback of legal rights
for transgender individuals. Signatories include Apple, Amazon, Cisco,
Dow Chemical, Facebook, Google, Intel, JP Morgan Chase, Levi Strauss,
Microsoft, Nike, and PepsiCo. According to the letter, more than 80% of
Fortune 500 companies have gender identity protections and nearly 70%
have transgender-inclusive health care coverage.