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The United States Supreme Court Is Set to Determine If Federal Law Prohibits Discrimination Against LGBTQ Workers


With two issues all teed up for the United States Supreme Court to address, legal scholars and those in the LGBTQ community had been chomping at the bit, waiting to see if the Supreme Court would take up a case (or cases) to settle a dispute among circuits over whether federal law protects LGBTQ workers from workplace discrimination.  And for those wondering, on April 22, the Supreme Court granted certiorari in three separate cases that will address the matter:  Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC.

Before we get to those three grants of certiorari, let us take a step back and look at the big picture.  For those unaware, at least two circuits (the Second and Seventh Circuits) along with the EEOC have found that federal workplace laws prohibit discrimination based upon a worker’s sexual orientation.  The other circuits (and President Donald Trump era Department of Justice) have found no federal law provides workers any protection from this discrimination.  As for whether federal workplace laws prohibit discrimination based upon a worker’s gender identity, the Sixth Circuit, EEOC, and the President Barack Obama era Department of Justice have found that it does.  The other circuits (and President Trump era Department of Justice) have found no federal law provides workers any protection from this discrimination.

Although there is not a “major” split among circuits on the issue, the fact that there is at least a split among circuits gives the Supreme Court grounds to resolve the disagreement and set a precedent for all circuits to follow (which will likely happen with the granting of certiorari on Monday.)  Now keep in mind that with a Supreme Court that has started to trend more conservative as of late, there is no guarantee federal workplace law would be extended to provide workers protection from these types of discrimination.  In fact, the Supreme Court had previously denied certiorari less than a year and a half ago in Jameka Evans v. Georgia Regional Hospital, a case that raised similar questions as Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes.  When the denial of certiorari occurred in Georgia Regional Hospital, Justice Anthony Kennedy was on the bench.  However, he has since been replaced with Justice Brett Kavanaugh, who many expect will not be as receptive to extending protections to LGBTQ workers from workplace discrimination.

With that being said, all it takes is one case with favorable facts for the Supreme Court to flip this matter on its head.  Until the Supreme Court issues an opinion (or opinions) on the matter, employers and employees alike should consult the relevant caselaw in their circuit to determine the extent (if any) of federal law and discrimination protection in regard to these two situations.


For additional information:  https://news.bloomberglaw.com/daily-labor-report/do-not-publish-supreme-court-can-settle-split-on-lgbt-bias-in-the-workplace

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