The cases pending before the Supreme Court in its upcoming term are varied, as always, and have the potential to affect many different groups. Pundits have noticed, however, that there are several cases pending as of this writing that may affect LGBTQ people more than most, especially in the realm of employment. These are cases worth watching, so as to be up to date with the rights and privileges you retain in the workplace.
Zarda and Sexual Orientation Discrimination
Two major cases have the potential to resolve a major issue of sexual orientation discrimination in employment, namely whether Title VII applies to it or not. The case of Altitude Express v. Zarda (2018) involved a skydiving instructor who was terminated from his employment in New York after revealing his sexual orientation to a student. Zarda’s claim was that his firing was sex-based discrimination because being homosexual had failed to “conform to sex stereotypes,” thus creating a presumption that his gender was a factor in his termination. The 2nd Circuit upheld his claims, but Altitude Express appealed to the Supreme Court, which should decide whether to grant certiorari (a hearing) in mid-December.
Many people think that LGBTQ employment protections already exist as settled law, but this is emphatically not the case. Only 23 states and Washington D.C. have law that explicitly prohibits employment discrimination based on sexual orientation and/or gender identity. South Carolina is one of those states that has no state-level protection for this community. If the Supreme Court strikes down the 2nd Circuit’s ruling in Zarda, it may mean that many state protections and case law will either have to be reworked or overruled entirely.
Harris Funeral Homes and Gender Identity Discrimination
The 6th Circuit decision in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (2018) upheld the complaint of a transgender woman who was allegedly fired due to her transition, holding that her employer violated Title VII by discriminating against her on the basis of sex. The opinion explicitly states that the client of the Equal Employment Opportunity Commission (the fired worker) was discriminated against due to her gender, because the funeral home did not give credence to her good-faith transition and thus continued to demand she fulfill male gender stereotypes, instead of allowing her to comport herself as any other woman would.
The key issue here is whether Title VII’s language encompasses “discrimination based on a failure to conform to stereotypical gender norms,” as opposed to discrimination based on actual differences between men and women. The argument is definitely plausible, and has already been accepted by several lower courts, including the 7th Circuit. South Carolina is a part of the 4th Circuit, which has not yet ruled on issues like this. But any ruling on an issue this big is at the very least noticed by the other circuits. Like Zarda, the court will determine whether or not they will hear Harris Funeral Homes in the second week of December 2018.
Seek An Employment Discrimination Attorney
Regardless of the outcome of these cases, LGBTQ people still have plenty of potential issues to face in employment, depending on the employer. If you believe you have been discriminated against due to your gender identity or sexual orientation, contacting an employment discrimination lawyer is a good first step. Attorney A. Christopher Potts has handled these types of cases for many years, and the office of Hitchcock & Potts is happy to help you with yours.
Contact us today to schedule an appointment.