Last Monday, the U.S. Supreme Court agreed to review a trio of cases that could have a major impact on employer practices and legal risks posed by employment discrimination claims. The cases involve the question of whether Title VII of the Civil Rights Act of 1964’s sex discrimination prohibitions apply to claims of bias based on sexual orientation and gender identity. The EEOC has long taken the administrative position that Title VII’s sex discrimination prohibitions extend to claims involving discrimination on the basis of sexual orientation and gender identity. Last year, the Trump administration’s Department of Justice withdrew Obama-era guidance on the topic, and it now takes the position that neither basis is protected.   

The Second Circuit concluded that Title VII protects sexual orientation, relying largely on the EEOC’s administrative position on this issue. The Eleventh Circuit held the opposite, finding no congressional intent to include these classifications under Title VII. The Sixth Circuit also adopted the EEOC’s reasoning to find gender identity protected against sexual stereotyping discrimination in a claim brought by a transgender employee.

About half of all U.S. states have no state law protections based on gender identity or sexual orientation. A decision in favor of the plaintiffs would apply a federal remedy for discrimination claims in these states. If the plaintiffs prevail, harassment and retaliation based on these classifications would most likely be actionable under Title VII. On the other hand, the Supreme Court could use the Sixth Circuit appeal to revisit the issue of protection of employees against sexual stereotyping behaviors in general.

Oral arguments will be scheduled in these appeals for the court’s October term, with a decision anticipated in late 2019 or early 2020.