January 14, 2019 Practice Points

Will Supreme Court Provide Much-Needed Clarity on Scope of Title VII Protections?

A significant open question in Title VII jurisprudence may finally be answered once and for all.

By Kathryn Hinton

Does Title VII prohibit workplace discrimination on the basis of sexual orientation or gender identity? While this may seem like a simple question, the answer is anything but. Historically, the answer was a consistent no. However, in recent years, that answer has started to possibly change. Now, the U.S. Supreme Court has the opportunity to answer this important question once and for all. But will it?

Since 2012, the Equal Employment Opportunity Commission (EEOC) has taken the position that Title VII’s prohibition against discrimination on the basis of “sex” extends to discrimination involving sexual orientation and gender identity. Under President Trump, however, the Department of Justice (DOJ) recently made clear its disagreement with the EEOC, arguing in a brief filed with the Supreme Court that Title VII does not protect against discrimination based on gender identity. As President Trump’s picks for EEOC appointments have not yet been approved by Congress, the EEOC’s position remains as it was under President Obama. In other words, the federal government is at odds with itself.

Federal agencies are not the only ones in disagreement on this issue. Over the past few years, a similar split has arisen among several federal circuit courts of appeal. In February 2018, the U.S. Court of Appeals for the Second Circuit ruled that discrimination on the basis of sexual orientation violates Title VII. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d 2018).

In March 2018, the U.S. Court of Appeals for the Sixth Circuit similarly held that Title VII’s protections extend to discrimination on the basis of gender identity. See EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir. 2018). This is the same case in which the DOJ later filed its brief on the appeal with the U.S. Supreme Court stating its position that Title VII does not include protections for gender identity. As the DOJ is charged with representing the EEOC should the Supreme Court decide to hear this case, the glaring conflict between the federal agencies will no doubt present an interesting quandary.

Only a few months later, in May 2018, the U.S. Court of Appeals for the Eleventh Circuit held just the opposite, finding that Title VII does not apply to sexual-orientation discrimination. See Bostock v. Clayton County, Case No. 17-13801 (11th Cir May 10, 2018) (unpublished opinion).

All three of these cases are currently on appeal to the U.S. Supreme Court, which has not yet decided whether it will hear one or more of them. Should the Court decide to hear even one of these cases, a significant open question in Title VII jurisprudence may finally be answered once and for all.

Kathryn Hinton is associate general counsel at McKinsey & Company in Atlanta, Georgia.


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