ABA asks Supreme Court to ensure that Title VII covers LGBT employees

The American Bar Association filed an amicus brief last Wednesday with the U.S. Supreme Court in three related cases, seeking to declare that the language of Title VII of the Civil Rights Act of 1964 encompasses discrimination based on an individual’s sexual orientation or transgender status.

Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin, is a key provision of the Civil Rights Act of 1964, which cemented many of the bedrock federal protections against discrimination in the United States. In recent months, federal appeals courts have disagreed on whether sexual orientation and transgender status are covered, and the court has set arguments for all three cases on Oct. 8.

The three cases are:

• Bostock v. Clayton County, Georgia, which presents the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination. The 11th U.S. Circuit Court of Appeals said it did not.

• Altitude Express v. Zarda, which presents an identical question. The Second U.S. Circuit Court of Appeals ruled that Title VII’s coverage extends to sexual orientation.

• R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, which raises the question of whether Title VII prohibits discrimination against transgender people based either on their status as transgender or sex stereotyping, as described in a 1989 decision (Price Waterhouse v. Hopkins).

In its brief, the ABA argued that discrimination based on sexual orientation or transgender status is discrimination based on stereotypes about the characteristics of males or females and constitutes sex discrimination.