The Supreme Court of the United States has scheduled oral argument in three cases asking whether employment discrimination on the basis of an employee’s sexual orientation and gender identity constitutes sex discrimination in violation of Title VII.
In May, the 6th Circuit Court of Appeals, which hears appeals from the federal district courts in Kentucky, held that Title VII protected a transgender employee who was fired from her position for wanting to dress according to her gender identity. In that case, the Court of Appeals rejected the employer’s argument that its decision to terminate the employee was consistent with its religious beliefs and protected by the Religious Freedom Restoration Act.
Argument before the Supreme Court
The federal appellate courts are split on whether Title VII prohibits employment discrimination based on sexual orientation, transgender status, and gender identity as types of “sex discrimination.” A prior post explains this split in more detail.
Does Title VII prohibit sexual-orientation discrimination?
In Altitude Express, Inc. v. Zarda, the U.S. Court of Appeals for the 2nd Circuit said that Title VII would protect an instructor’s job at a New York skydiving company from termination for being gay because sexual orientation discrimination “is a subset of sex discrimination.”
But in Bostock v. Clayton County, Georgia, the 11th Circuit held that such discrimination does not violate Title VII. There, the county terminated the plaintiff after learning that she joined a softball league for gay people. The plaintiff claimed that she was fired for her sexual orientation; the county countered that she was fired for performance issues.
The outcome of these cases will impact Kentuckians and Kentucky law, as the Kentucky Civil Rights Act, which is modeled after Title VII, is interpreted in a manner consistent with Title VII. We’ll report back after the oral arguments and after the Court issues its opinion.