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May 2, 2019

Supreme Court Agrees to Hear Cases Addressing Whether Title VII Protects Against Discrimination on the Basis of Sexual Orientation and Gender Identity


On April 22, 2019, the Supreme Court agreed to hear three cases addressing whether the federal prohibition of sex discrimination under Title VII of the Civil Rights Act of 1964 also protects against discrimination on the basis of sexual orientation and gender identity.


Title VII, 42 U.S.C. § 2000e, makes it unlawful for an employer to discriminate against an employee on the basis of his or her "sex." The question of whether this prohibition of discrimination on the basis of sex encompasses discrimination on the basis of sexual orientation and gender identity has been percolating in lower and appellate courts in recent years. Earlier this week, the Supreme Court agreed to weigh in.

Before any of the decisions currently being considered were ripe for review, the EEOC and other circuit courts had already confronted the question of sexual orientation discrimination under Title VII. In Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015), the EEOC took the position that Title VII prohibits discrimination on the basis of sexual orientation. Two years later, the Seventh Circuit agreed. Hively v. Ivy Tech Cmty. Coll. Of Ind., 853 F.3d 339, 351-52 (7th Cir. 2017). But other courts had previously taken the opposite view. See, e.g., Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) ("Discharge for homosexuality is not prohibited by Title VII.").

In addition, many states, including New York, California and Illinois, and cities including Washington, DC and New York City, have passed their own human rights laws that specifically prohibit discrimination on the basis of sexual orientation or gender identity. But over half of the states do not currently have such protections. The Department of Justice and the Trump Administration have also recently expressed the view that Title VII does not afford these protections.

Two of the three cases the Supreme Court agreed to hear, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) and Bostock v. Clayton Cty. Bd. of Comm's, 723 F. App'x 964 (11th Cir. 2018) address the same question. 

Zarda involves the appeal of a Second Circuit decision finding in favor of an employee sky diving instructor who alleged that his employer wrongfully terminated him on the basis of his sexual orientation after he disclosed it to a client. In doing so, the Second Circuit sitting en banc held that Title VII covers sexual orientation discrimination claims.

By contrast, the Eleventh Circuit in Bostock reached the opposite conclusion: that Title VII does not ban discrimination on the basis of sexual orientation. It affirmed the dismissal of an employee's claim that his employer terminated him after discovering his participation in an LGBT softball league. In her dissent, Circuit Judge Robin Rosenbaum strongly criticized the decision and cited to a statistic that 25% of LGBT Americans reported facing employment discrimination.

The third case that will be argued before the Supreme Court, Equal Employment Opportunity Comm'n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) confronts the issue of whether Title VII prohibits gender identity discrimination. In that case, an employee claimed she was fired after informing her boss of her intent to transition to a female gender identity and wear women's clothing at work. The Sixth Circuit held that Title VII protected the transgender plaintiff from workplace discrimination.

The Supreme Court will hear these three cases during its fall term, which begins in October, and is expected to issue decisions by June 2020.


While the outcome of these cases will not significantly impact employers located in cities and states with broad human rights laws that already prohibit discrimination on the basis of sexual orientation and gender identity, a Supreme Court ruling in this area will provide clarity for employers facing these types of claims that are located in cities where such protections do not already exist under state or local law. Additionally, a decision could also impact civil rights beyond the workplace, including the Title IX ban on sex discrimination in education (which often relies on Title VII law as precedential support), and may become a political issue in the run-up to the 2020 elections.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.