Supreme Court to Consider LGBT Rights Under Title VII

April 26, 2019

The U.S. Supreme Court has announced that it will review three circuit court cases to resolve the issue of whether the prohibition in Title VII of the 1964 Civil Rights Act against sex-based employment discrimination extends to sexual orientation and gender identity.

Split in authorities: The Justice Department and 8 of the 11 circuit courts maintain that Title VII does not extend the prohibition against sex-based employment discrimination to sexual orientation and gender identity.  In contrast, the EEOC and 2 of the 11 circuit courts maintain Title VII does cover employment discrimination regarding sexual orientation and gender identity.

Limited impact on large employers: Twenty-three states already protect gay and transgender individuals against employment discrimination under state law and most large employers’ workplace polices prohibit discrimination based on sexual orientation and gender identity.
 
Potential increase in litigation: If the Supreme Court decides Title VII doesn't include LGBT protections, it would likely drive more employment-discrimination cases to state courts where damage awards are typically higher.
 
Outlook:  While the high court will not hear or decide the issue until its next term (October 2019 – June 2020), the House is expected to pass the Equality Act (H.R. 5 and S. 788) this spring, which will extend Title VII protection to sexual orientation and gender identity.  The measure is supported by HR Policy and others in the business community.  However, the Senate is considered unlikely take up the bill.  Even if nothing is passed in the current Congress, the Court’s decision either way will have an impact on the long-term outlook for the legislation.