U.S. Supreme Court Hears Two Cases of Sexual Orientation Discrimination

The New Jersey Law Against Discrimination (NJLAD) includes extensive and broad protections against discrimination in the workplace. The law prohibits employers from discriminating against their employees on the basis of race, color, sex, pregnancy, sexual orientation, gender identity, etc. However, factors like sexual orientation and gender identity or expression are not explicitly protected under federal laws and many other state laws.

Federal Protections

Title VII of the Civil Rights Act includes five protected factors under the act. Over the years, court rulings and amendments to the law have broadened the definition of “sex discrimination” on the federal level. This expansion allows sexual harassment and pregnancy discrimination to fall under the category of sex discrimination. However, many federal courts are reluctant to expand this definition further. The courts are hesitant to include factors like sexual orientation in their interpretation of the statute.

Circuit Court Splits

Two appellate courts reached different conclusions on two cases that involved sexual orientation discrimination claims under Title VII. The two cases were in the U.S. Court of Appeals for the Second and Eleventh Circuit. Since this created a split in the circuit, in April of 2019, the United States Supreme Court agreed to hear the two cases. Similarly, the U.S. Supreme Court also agreed to hear a Title VII case including allegations of gender identity discrimination.

In the Second Circuit case, Donald Zarda worked for Altitude Express Inc. After revealing his sexual orientation to a skydiving client, his company fired him. Zarda then filed suit against Altitude Express for his termination. The Second Circuit three-judge panel held that sexual orientation discrimination constitutes a form of discrimination because of “sex” in violation of Title VII. The court emphasized that Title VII includes a broad rule of workplace equality and sex factors into sexual orientation. The court found that one cannot fully define a person’s sexual orientation without identifying his or her sex. Further, the court held that sexual orientation is a function of sex.

On the other hand, the Eleventh Circuit ruled on a case brought by a child welfare services coordinator, Gerald Bostock. In his claim, he alleged that after the county of his employment learned he was gay, the county then falsely accused him of mismanaging public money. This led to his termination. However, he claims that the real reason for his termination was his sexual orientation. The Eleventh Circuit affirmed the district court’s ruling that the statute does not apply to discrimination based on sexual orientation.

United States Supreme Court Weighs In

Clearly, there is a split between the courts’ conclusions as to whether or not sexual orientation and gender identity are protected under Title VII. The United States Supreme Court will begin hearing oral arguments to resolve the courts’ splits this fall 2019.