Supreme Court Will Hear LGBT Blockbuster

Author: David B. Weisenfeld, XpertHR Legal Editor

April 23, 2019

The Supreme Court has agreed to hear a major legal dispute involving whether federal civil rights law protects sexual orientation and gender identity. It is an issue that has divided the nation's federal appellate courts.

The New York City-based 2nd Circuit Court of Appeals and the Cincinnati-based 6th Circuit both ruled in favor of fired LGBT employees who claimed they were the victims of employment discrimination. But the Atlanta-based 11th Circuit reached a contrary result in finding that Title VII of the Civil Rights does not protect sexual orientation. After passing up several previous chances to take up the issue, the Supreme Court agreed to hear this trio of cases yesterday.

"The tide has been going in favor of employees," said New Jersey employment attorney Denise Keyser of Ballard Spahr, referring to a host of state and municipal laws protecting the rights of LGBT employees, as well as recent appellate court rulings. But it is by no means certain that the Supreme Court will follow suit.

Justice Anthony Kennedy, who authored the landmark same-sex marriage ruling and provided the decisive vote in Obergefell v. Hodges, retired last year. And while that ruling did not address employment protections, Keyser said, "There is nothing in Justice [Brett] Kavanaugh's record that would indicate he would take as expansive a view of Title VII as Justice Kennedy."

A Coin Flip

New York City employment attorney Jason Habinsky, of Haynes and Boone, called it "a coin flip" as to where the Supreme Court goes with these cases, but said there is no question the change in the Court's composition could be a factor.

Regardless of what happens, Habinsky described the Supreme Court's decision to hear these disputes as "a wakeup call for some companies, especially those located where there are no laws or protections for LGBT employees."

Ultimately, Keyser noted that the impact of these cases depends on where an employer is located. "If you're in New Jersey, for instance, it really makes no difference at all because New Jersey already prohibits sexual orientation discrimination and in California or New York that's also true," said Keyser. "But in other states, what the Supreme Court does could make a significant difference."

Possible Middle Ground

There is a potential middle ground in one of the three cases, the 6th Circuit case of Harris Funeral Homes v. EEOC, which involves the separate question of whether Title VII makes it illegal to discriminate against transgender employees. In that case, a funeral home director was fired after informing his employer that he was transitioning from male to female and would begin wearing women's clothes to work.

One of the fired employee's arguments was that she could prevail on a claim of gender stereotyping even if she did not win the underlying case. In 1989, the Supreme Court ruled in Price Waterhouse v. Hopkins that discriminating against an employee because she did not conform to gender stereotypes was a form of sex discrimination.

"Gender stereotyping is definitely a realistic theory," said Keyser. "There is an entrenched line of cases supporting that reasoning."

Habinsky agreed and added that, even if the Supreme Court rules for the employers, it might lead to an increased push for more expansive local laws protecting LGBT employees.

The Court will hear arguments in the fall, with a ruling likely in 2020.