On April 22, 2019, the Supreme Court granted certiorariin three cases relating to Title VII’s coverage (or noncoverage) of workplace discrimination based on sexual orientation and/or transgender status. Those cases are Bostock v. Clayton County, GA(No. 17-1618), Altitude Express, Inc. v. Zarda(No. 17-1623), and R.G. & G.R. Harris Funeral Homes v. EEOC (No. 18-107).
The Court consolidated Bostockand Zarda, which both concern whether discrimination against an individual because of his or her sexual orientation is discrimination “because of . . . sex” as prohibited by Title VII. In Zarda, the Second Circuit Court of Appeals refused to overturn precedent that “Title VII does not proscribe discrimination because of sexual orientation[.]” 855 F.3d 76, 81 (2d Cir. 2017). On rehearingen banc, however, the court reversed, recognizing the “changing legal landscape” and holding that Title VII doesprohibit sexual orientation discrimination as discrimination “because of . . . sex.” Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018).
In Bostock, the Eleventh Circuit Court of Appeals affirmed a district court’s dismissal of a lawsuit for sexual orientation discrimination under Title VII because “[d]ischarge for homosexuality is not prohibited by Title VII.” 723 Fed. Appx. 964 (11th Cir. 2018) (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)) (emphasis omitted). The court subsequently denied en banc review, despite dissenting judge Rosenbaum’s recognition that the issue (1) affects “a whole lot of people” (citing that in 2011 roughly 8 million Americans identified as lesbian, gay, or bisexual), (2) had since been revisited en banc by the Second and Seventh Circuits, and (3) requires more analysis than the outdated Blum opinion provided in the first place. Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d 1335 (11th Cir. 2018).
In R.G. & G.R. Harris Funeral Homes, the Supreme Court will decide whether Title VII prohibits discrimination against transgender individuals based on (1) their status as transgender or (2) sex stereotyping theory under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, the Sixth Circuit held, in part, that a funeral home’s termination of an employee because the employee announced she would transition to a woman, present as a woman at work, and violate the sex-specific dress code comprised discrimination “on the basis of her sex[.]” EEOC v. R.G., 884 F.3d 560, 567 (6th Cir. 2018).
Keep in mind that Maryland law, as with many other states, already prohibits employment discrimination based on sexual orientation and gender identity. The Supreme Court’s decision in this trio of cases, however, may bring welcome uniformity to the Title VII coverage issue which has divided courts throughout the country.