The U.S. Supreme Court has agreed to consider three cases to determine whether the federal law protecting employees from sex discrimination and sexual harassment also prohibits discrimination based on gender identity, transgender status, and sexual orientation under the umbrella of discrimination based on “sex.”
One of these cases is R.G & G.R. Harris Funeral Homes v. EEOC, a federal case out of Michigan, in which an employee alleged sex discrimination against her funeral-home employer after the employer fired her for requesting to dress at work in line with her gender identity. The Equal Employment Opportunity Commission brought the lawsuit on her behalf on the theory that transgender status is a kind of sex discrimination under Title VII of the Civil Rights Act, which applies to employers with at least 15 employees.
The employer argued in the U.S. District Court that it was exempt from Title VII because its religious opposition to the employee’s transgender status was protected under the federal Religious Freedom Restoration Act, with which the judge agreed. On appeal to the U.S. Court of Appeals for the Sixth Circuit (that includes Kentucky), the appeals court reversed, holding that Title VII protects employees against discrimination based on gender identity as a type of sex discrimination.
The Supreme Court will decide the Title VII issue as well as whether the funeral home’s reaction to the employee’s desire to dress in accord with her identifying gender constituted illegal “sex stereotyping” of how a worker is expected to dress or act according to gender.
The primary federal anti-discrimination and anti-harassment law is Title VII, which protects people from sex discrimination and sexual harassment (as well as other kinds of discrimination) in hiring or on the job. The EEOC is the federal agency that enforces this and similar laws, and it interprets sex discrimination as covering discrimination based on LBGT status.
The U.S. Department of Justice disagrees with the EEOC. According to NBC, the DOJ has asserted that sex discrimination under Title VII only protects discrimination based on biological gender.
The Trump Administration is in sync with the DOJ, so the triad of cases before the Supreme Court will settle the disagreement between them and the EEOC as well as between courts split on the issue.
What about Kentuckians?
Kentucky Governor Matt Bevin signed on to a friend-of-the-court brief supporting the employer funeral home, urging the high court to take the case. In addition to Gov. Bevin, on behalf of Kentucky, 15 other states joined in that amicus brief. The parties urged the Supreme Court to hear the case because they disagreed with the Sixth Circuit, arguing that the plain language of “sex” discrimination means biological gender only and that states should have the right to determine whether to give protection to workers based on gender identity.
The state-level Kentucky Civil Rights Act does not expressly protect against LGBT employment discrimination, but several city or local governments across the Commonwealth have enacted ordinances that do. According to a Courier Journal article, the patchwork of city and county LGBT anti-discrimination ordinances across Kentucky protect about 20% of the state population, citing the director of the Fairness Campaign.
State government workers, however, receive protection from LGBT employment discrimination under an executive order signed by former Gov. Steve Beshear.
Employment lawyers will be watching the Supreme Court for its decision on this federal issue. The three cases are likely to be argued in the autumn.
In the meantime, any Kentuckian who suffers from discrimination based on LGBTQ status at work or in hiring should speak with an attorney as soon as possible so as not to miss any deadlines and to understand what legal remedies may be available.
Similarly, each Kentucky employer should have a working relationship with an employment lawyer to provide guidance about how to comply in the workplace and set up policies and practices consistent with federal, state, and local anti-discrimination laws.