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No consensus seen for high court ruling on LGBT protections

Posted On: Apr. 30, 2019 7:00 AM CST

US Supreme Court LGBT case

The U.S. Supreme Court has accepted three cases for review on the issue of whether sexual orientation and gender identity discrimination are protected under Title VII of the Civil Rights Act of 1964, but there is no consensus as to how the court is likely to rule.

Predictions include that the court will rule Title VII does not cover any of the three cases, that it covers all of them and that the court will not rule the same on all three cases.

Two of the cases, Melissa Zarda et al. v. Altitude Express and Gerald Lynn Bostock v. Clayton County, will be heard together.

In the Zarda ruling, the 2nd U.S. Circuit Court of Appeals in New York decided in favor of Donald Zarda, a gay skydiver who sued his former employer, Calverton, New York-based Altitude Express, alleging he was fired from his job as a skydiving instructor because of his sexual orientation.

In the Bostock case, the 11th Circuit in Atlanta upheld a lower court decision and ruled against Mr. Bostock, a gay man who contended he was fired as a child welfare services coordinator for the Clayton County Juvenile Court system because of his systemic sexual orientation.

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission will get a separate hearing. In that case, the 6th Circuit in Cincinnati ruled in favor of a transgender worker who was fired when she told her funeral home employer she was undergoing a gender transition from male to female.

Some experts predict the high court will say that the issue of protections for LGBT employees is a matter for Congress.

“The court likely will hold that Title VII doesn’t cover sexual orientation and gender identity, that it’s something that Congress needs to do,” although it will be a close decision, said J. Randall Coffey, a partner with Fisher & Phillips LLP in Kansas City, Missouri.

Tim K. Garrett of Bass, Berry & Sims PLC in Nashville, Tennessee, said, “My prediction is that the court will find that Title VII does not extend to sexual orientation or gender identity,” but that there will be a call for Congress to deal with the issue, although attempts over the years to amend Title VII on this issue “have never really gotten any legs to do it through a legislative remedy.”

The court could say, “If Congress wants to extend Title VII to cover those areas, it is free to do so,” said Brian D. Pedrow, a partner with Ballard Spahr LLP in Philadelphia.

The deciding vote “will probably come down” to Justice John Roberts, who dissented in Obergefell v. Hodges, the 2015 Supreme Court ruling that approved gay marriage across the United States, said Gregory P. Abrams, a partner with Faegre Baker Daniels LLP in Chicago.

But one attorney said she sees the Supreme Court potentially extending Title VII protections to LGBT employees.

“It’s highly possible Title VII protection will be extended to protect these classes,” said Corey E. Tanner, an associate with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas.

“We’ve seen an expansion of the definition of sex over the past few decades,” she said.

Other observers say they believe the court will issue a split decision among the cases, although they disagree as to how precisely it will rule.

Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago, said he believes the court is more likely to rule that sexual orientation is covered under Title VII than are transgendered individuals “just because the case law on sexual stereotyping extends more easily to sexual orientation issues versus transgender transformation issues.”

The Supreme Court held in its 1989 ruling in Price Waterhouse v. Hopkins that plaintiffs can rely on gender-stereotyping evidence to show that discrimination occurred.

But it is “entirely possible” the court may rule in the plaintiff’s favor in the Harris case “because from a simple conceptual framework, if someone is transgender, it’s much easier to argue they’re not conforming with sexual stereotyping,” said Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh.

Richard B. Cohen, a partner with FisherBroyles LLP in New York, said the high court is “becoming a very politicized court.”

He also noted that in Zarda the Justice Department supported the employer while the EEOC supported the plaintiff, but “the EEOC “doesn’t appear to have that much influence now as it did under previous administrations.”