United States: Supreme Court Hears Landmark Cases On Title VII Sexual Orientation And Gender Identity Discrimination

Seyfarth Synopsis: On October 8th, the Supreme Court heard oral argument in a trio of cases that may decide whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity. In much of the nation, gay and transgender workers have no legal protections against employment discrimination. These cases may decide if a federal right of action exists for individuals alleging discrimination based on sexual orientation and gender identity.

On October 8th, the Supreme Court heard oral argument in three cases that may determine whether Title VII's prohibition against discrimination "on the basis of sex," includes sexual orientation and gender identity. Two of the cases on appeal, from the Second and Eleventh Circuit Courts of Appeal, addressed the question of whether Title VII prohibits discrimination on the basis of sexual orientation.

In Zarda v. Altitude Express, the plaintiff, Donald Zarda, was a sky-diving instructor who told a client strapped to him for a tandem jump that he was gay to make her feel more comfortable. The client's boyfriend complained and Altitude Express terminated Zarda's employment. Zarda sued, alleging that Altitude Express terminated his employment because of his sexual orientation and that this constituted sex stereotyping in violation of Title VII. The district court granted summary judgment dismissing Zarda's Title VII claim, and the Second Circuit affirmed relying on precedent that a sex stereotyping claim cannot be predicated on sexual orientation. Zarda successfully petitioned for rehearing en banc. A divided court overturned the panel decision and Second Circuit precedent, holding that Title VII's prohibition against discrimination on the basis of sex necessarily prohibits discrimination based on sexual orientation.

Three months later, the Eleventh Circuit in Bostock v. Clayton County decided a similar case and reaffirmed that circuit's precedent holding sexual orientation is not protected by Title VII's prohibition against discrimination on the basis of sex. Bostock alleged that he was fired because he is gay, despite a long history of positive performance. In its brief opinion, the Eleventh Circuit declined to revisit its prior holdings in Blum v. Gulf Oil Corp and Evans v. Georgia Regional Hospital and affirmed dismissal of his Title VII claim. Plaintiff then petitioned for rehearing en banc. Though the Eleventh Circuit denied the petition for rehearing, two Circuit Court judges dissented from the court's denial. They chided the majority for clinging to the thirty-nine year old Blum precedent, and lamented the widespread effects of sexual orientation discrimination. The dissenting judges concluded that, because Title VII prohibits discrimination on the basis of sex and sex-based stereotypes, the statute necessarily prohibits discrimination on the basis of sexual orientation.

At oral argument, the Justices questioned counsel for both parties vigorously. Justices Alito and Breyer questioned counsel for Bostock and Zarda about the policy implications of expanding Title VII's protections to sexual orientation. Counsel responded that the Court would be going no farther than it had in Oncale and Price Waterhouse, when it decided that Title VII prohibited same-sex harassment and sex-based stereotyping, respectively. During argument, Justice Roberts raised concerns about the effect on religious organizations of expanding Title VII's reach. Justice Alito also expressed concerns about changing "the meaning of what Congress understood sex to mean" by including sexual orientation in the definition of sex. Justice Gorsuch is shaping up to be the potential swing vote on these cases. He appeared sympathetic to Bostock and Zarda's arguments, indicating that sex appears to be a factor in the terminations.

The Justices also probed counsel for Clayton County and Altitude Express to explain how a person's sexual orientation can be independent of sex. Justice Breyer likened sexual orientation to discrimination against inter-religious marriage. Justice Gorsuch also suggested that, under Title VII's but-for causation standard, termination on the basis of sexual orientation alone would not constitute impermissible sex discrimination, but questioned whether sex was "also in play."

The Supreme Court also heard oral argument in the matter of R.G. & G.R. Funeral Homes v. EEOC, a case where the Sixth Circuit decided that Title VII prohibits discrimination on the basis of gender identity. In that case, plaintiff Aimee Stephens worked for six years as a funeral director and embalmer. After appearing and dressing as a man for several years, she disclosed to her employer in 2013 that she would transition to dressing as a woman and planned to have sex-reassignment surgery. Her employer responded that "this is not going to work out," offered Ms. Stephens a severance agreement, and terminated her. Ms. Stephens sued and alleged discrimination on the basis of sex under Title VII. Though the district court granted summary judgment in favor of R.G. & G.R., the Sixth Circuit reversed. The Sixth Circuit explained that the type of discrimination Ms. Stephens experienced fell squarely within Title VII's prohibition against discrimination on the basis of sex and sexual stereotyping and held that Title VII prohibits discrimination on the basis of gender identity.

Justice Roberts asked the funeral home's counsel how the Court should approach analyzing a transgender employee's claim of sex discrimination. In particular, Justice Roberts focused on whether the court should consider biological sex in its analysis of the individual's transgender status. Justice Gorsuch also expressed concern that the decision to expand Title VII protections to an area that the legislature likely had not considered in 1964 was essentially a legislative decision. Justice Gorsuch acknowledged in his questioning that he thought the case was very close as a matter of textual interpretation. He said that whether Title VII bars employment discrimination based on gender identity is a "really close, really close" question, but raised concerns about "massive social upheaval" that would flow from a ruling affirming an expanded understanding of Title VII's protections.

Justice Breyer reiterated his view that sex and gender identity were as interrelated as discrimination on the basis of race and interracial marriage or religion and interreligious marriage. The funeral home's counsel answered that discrimination in the latter two instances resulted from discriminatory animus towards a particular race or religion, which are clearly protected under Title VII, whereas discrimination based on gender identity is motivated by an independent, and unprotected, characteristic. In response to petitioner's argument that interpreting Title VII to protected transgender employees could impact businesses with legitimate reasons for gender-based criteria, such as women's shelters, Justice Sotomayor suggested that bona fide occupational qualifications were a potential solution to a conflict between a business's sex-based policies that further legitimate objectives and protecting transgender workers against discrimination.

Twenty-five states still do not have statutes prohibiting discrimination on the bases of sexual orientation or gender identity in private employment. The Supreme Court could dramatically alter this landscape and recognize a federal right of action under Title VII for discrimination based on sexual orientation or gender identity, with significant implications for employers operating in states that currently provide no such protection. Justice Gorsuch's intense questioning of the parties suggests the cases will be closely decided, and that he may be the surprise swing vote on this issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions