By: Rafael P. McLaughlin, Esq. and Leslie Kizziar, J.D.

Title VII of the Civil Rights Act of 1964 presently protects the following five classes: race, color, religion, sex, and national origin. However, the United States Supreme Court will decide whether sexual orientation and gender identification should be similarly protected when it considers the cases of Altitude Express Inc v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC during the upcoming term that begins on October 7, 2019.

Zarda arises from the 2010 termination of Donald Zarda, a skydiving instructor at Altitude Express, who told a female customer he was gay to put her at ease about being strapped closely to him for a tandem dive.  The customer complained to Altitude Express that Zarda had made her feel uncomfortable and had touched her inappropriately. Upon being fired, Zarda filed suit against Altitude Express alleging that his termination was due to his sexual orientation and failure to conform to traditional male stereotypes in violation of Title VII.  The U.S.D.C for the Eastern District of New York as well as a three-judge panel of the 2nd Circuit Court of Appeals disagreed with Zarda, finding that “sex” and “sexual orientation” are distinctly separate categories.

However, the 2nd Circuit agreed to review the case en banc.  Notably, the U.S. Department of Justice unexpectedly intervened in the case and, taking a position contrary to the EEOC, argued that Title VII does not explicitly protect sexual orientation.  However, in a majority opinion, the 2nd Circuit ruled that because sexual orientation is a function of sex, it logically follows that Title VII prohibits discrimination based on sexual orientation.

In Harris Funeral Homes, Aimee Stephens (formerly “Anthony Stephens”) had been an employee of R.G. & G.R. Harris Funeral Homes for six years when, in 2013, she decided to undergo gender reassignment surgery and began making lifestyle changes in preparation for her transition.  Stephens informed her boss about her impending gender reassignment surgery and of her plan to begin wearing attire appropriate for female employees as outlined in the employee handbook.  However, Stephens was terminated before that could occur.  Stephens filed a complaint with the EEOC alleging transgender discrimination in violation of Title VII.  The EEOC agreed and filed suit against Harris Funeral Homes in the U.S.D.C. for the Eastern District of Michigan, which found that Title VII does not protect transgender persons or gender identity. The trial court further ruled that the Religious Freedom Restoration Act afforded the owner of the funeral home, a devout Christian, the right to remain aligned with his religious belief that one could not change their biological gender and, therefore, could fire Stephens for nonconformity. On appeal, the 6th Circuit reversed, ruling that Title VII’s “discrimination by sex” includes transgender persons.  The 6th Circuit’s decision relied, in part, on the 1989 Supreme Court ruling in Price Waterhouse v. Hopkins that employers cannot discriminate against employees for failing to conform with male or female stereotypes.

The Supreme Court’s rulings in Zarda and Harris Funeral Homes could establish new frontiers for Title VII protections and, in turn, potential employer liability. Given the current composition of the Court, it is difficult to predict how it will come down in these significant cases. Assuming sexual orientation and gender identity become a protected class(es), employers will be liable for decisions predicated on an employee’s sexual orientation and/or gender identification, and for discrimination based on same.  The Court’s rulings in Zarda and Harris Funeral Homes could turn on whether the justices decide that “sex” as embodied by Title VII includes sexual orientation and/or gender identification, or if separate and new Title VII classes should be created.

Should you have any questions regarding this issue, please contact any member of our Employment Practices Defense Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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