By Andrew A. Kimler, Esq.
Fifty years after Stonewall, there is still no federal law providing workplace
protection to LGBT people, notwithstanding the fact that 22 states and
many municipalities have enacted laws that bar discrimination on the basis
of sexual orientation. Legislative efforts to provide federal protection
have not been successful, though some protections exist due to judicial
rulings or other legislation.
Title VII of the Civil Rights Act bars employment discrimination because
of an individual’s “race, color, religion, sex, or national
origin.” Federal courts, however, have interpreted the meaning of
“sex discrimination” inconsistently. Some courts have held
that Title VII’s prohibition on sex discrimination includes sexual
orientation and gender identity, while some federal courts have held that
these are not protected classes, since they are not listed as specific
In an effort to address this issue, in May 2019 the U.S. House of Representatives
passed the Equality Act, which bars discrimination based on sex, sexual
orientation, and gender identity in employment. However, it appears unlikely
that the Senate will approve the bill. This issue will now come to a head
before the U.S. Supreme Court, which agreed to hear three landmark cases
in October concerning the employment rights of gay and transgender individuals.
Regarding Title VII, the question before the Court is whether the prohibition
against workplace discrimination based on sex also prohibits discrimination
based on sexual orientation or gender identity.
Uncharacteristically, federal agencies have argued against each other in
the courts. The Trump Administration has contended that Title VII does
not 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
sexual orientation and gender identity.
The three cases pending before the Supreme Court are the first LGBT cases
since the retirement of Justice Anthony Kennedy, a strong proponent of
LGBT rights. It was Justice Kennedy who wrote the 2015 opinion in
Obergefell v. Hodges, which legalized same-sex marriage. 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
Two cases before the Supreme Court involve claims of workplace discrimination
based on sexual orientation:
Altitude Express Inc. v. Zarda (No. 17-1623), which went in favor of the plaintiff in New York and is
now on appeal, and
Bostock v. Clayton County (No. 17-1618), a decision in Georgia that went the opposite way and is
now on appeal. The third case,
R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (No. 18-107), is a workplace discrimination suit brought by a transgender
woman in Ohio, on appeal 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.
Until the Supreme Court decides these issues, members of the LGBT community
will have no choice but to continue to struggle with the patchwork of
conflicting court decisions and statutes, which provide limited protection
to those who reside in some states and cities. How the Court answers the
question as to what constitutes “sex discrimination” is anyone’s guess.
Andrew Kimler, a partner at Vishnick McGovern Milizio LLP, a New York-based
law firm, regularly writes and lectures on LGBT legal issues.
*This article was originally published in the Nov.-Dec.
The Gay & Lesbian Review/Worldwide (The G&LR) magazine, formerly a Harvard publication.