Under federal law and the laws of most states, gay, lesbian, and transgender employees aren’t explicitly protected from workplace discrimination—but that might change.
In October of 2019, the U.S. Supreme Court heard oral arguments in two consolidated cases involving sexual orientation discrimination in the workplace. In Bostock v. Clayton County, Georgia, a man alleged he was fired from his position as a child welfare services coordinator because he was gay (723 F. App’x 964 (11th Cir. 2018)). The U.S. Court of Appeals for the Eleventh Circuit had dismissed Bostock's case, citing its recent precedent in Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), holding that the sex discrimination ban in Title VII of the Civil Rights Act doesn’t cover sexual orientation discrimination.
In the companion case, Altitude Express, Inc. v. Zarda, 883 F.3d 100 (2nd Cir. 2018), the plaintiff was a sky diving instructor who had informed a female customer he was gay to try to put her at ease before they were strapped together. After the woman's boyfriend complained that this made her feel uncomfortable, Zarda was fired.
The U.S. Court of Appeals for the Second Circuit ruled that this conduct was discrimination based on sexual orientation, which violated Title VII’s ban on sex discrimination. The Zarda case was unique in that it pitted the EEOC, which argued for expanding the sex discrimination ban to cover sexual orientation discrimination, against the U.S. Department of Justice, which opposed the move.
With the federal courts' rulings in Bostock and Zarda creating a circuit split, the Supreme Court agreed to hear the cases.
The Supreme Court also heard arguments in a case that will determine whether gender identity is a protected class under Title VII. In R.G. & G.R. Harris Funeral Homes v. EEOC, a funeral home embalmer was fired after informing her boss that she would be undergoing gender reassignment surgery.
Decisions on these cases are expected in the summer of 2020.