The Ever-changing Employment Practices Landscape

November 14, 2019

Supreme Court Considers First Title VII Expansion Since 1964

On October 8, 2019, the United States Supreme Court held oral arguments over what could be a major expansion to Title VII of the Civil Rights Act of 1964. This expansion could significantly extend employee rights in terms of workplace discrimination. The Court heard three cases: Bostock, Altitude Express Inc., and R.G. & G.R. Harris Funeral Homes Inc. Each case deals with the rights of lesbian, gay, bisexual, and transgender (LGBT) workers facing alleged discrimination in the workplace. Title VII as currently written bars any discrimination “because of such individual’s race, color, religion, sex, or national origin.”2 The question before the Supreme Court is whether “sex” as written in the statute also applies to sexual orientation.

Many employers and employees may be aware that discrimination based on sexual orientation and identity is already banned by statute in 21 states3  and the District of Columbia, Guam, and Puerto Rico. But what about the other states? Though states such as Michigan and Pennsylvania have no statues on the issue, they have had governors issue executive orders banning discrimination. This, however, leaves employers and employees vulnerable to changes in office holders. Employees and employers in states without any current laws may look to conflicting federal court decisions that the Supreme Court examined in this case.

In Bostock, the Eleventh Circuit held that the Title VII bar on sex discrimination did not apply to sexual orientation, finding that Gerald Bostock’s employer, Clayton County, did not violate Title VII when it dismissed him solely on this basis. The Second Circuit, however, held in Zarda that Title VII did bar sexual orientation discrimination, finding that Zarda’s sexual orientation claims were wrongly limited to being decided solely on the basis of New York State law.

In R.G. &. G.R. Harris, the Equal Employment Opportunity Commission (EEOC) brought a lawsuit against the funeral home that employed Aimee Stephens after she filed a charge with the Commission that alleged she was terminated after advising the funeral home that she would be transitioning to female. In this case, the Sixth Circuit found that firing Stephens based on her transgender status failed to comply with the Title VII bar on sex discrimination.

The argument to include sexual orientation in Title VII is based on the strict language of the statute, essentially that it is to discriminate based on the sex of the employee or to treat an individual differently because he or she may love or date differently than their gender stereotype. At oral argument before the Supreme Court, Pamela S. Karlan, the attorney for Plaintiffs Bostock and Zarda, posed this argument as follows: “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.” Justice Kagan additionally framed it with the following question: “Would the same thing have happened to you if you were of a different sex?”

The counterargument is that the statute does not specifically mention sexual orientation, and thus the drafters of the statute may not have intended for it to cover sexual orientation discrimination. The Court also wrestled with the fact that 21 states have specifically barred sexual orientation discrimination, and it was posited that the states would not have taken such action had Title VII clearly protected sexual orientation. As framed by Justice Alito at oral argument, “If the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature.”

The concerns of the Court in R.G. &. G.R. Harris seemed to deal less with the text of the statute, perhaps because discrimination based on sex could be tied directly to gender identity. When the Court questioned how a decision in favor of Stephens could affect restrooms or sports leagues, her attorneys advised that those issues were not under consideration, while attorneys for the funeral home advised that those concerns would have to be addressed down the line if there were to be a decision in her favor.

With ongoing questions remaining at both the state and federal level, businesses may wish to ensure they are compatible with current state and federal law to make themselves less vulnerable to this type of litigation. Given the publicity of these cases, companies should consider themselves on notice as to the possibility of claims. Employees or third parties may seek to bring claims against companies based on gender and sexual orientation discrimination. Companies seeking to mitigate risks presented by the threat of Title VII litigation can do so with employment practices liability coverage. As the legal community monitors for decisions throughout the country that could eventually set further precedents for the purview of Title VII, employers should carefully assess the effects of a potential decision and consider the scope of their policies to ensure that such litigation will be addressed. A trusted broker partner can work with companies seeking to limit the risk of this type of litigation with the proper insurance coverage.

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Michael D’Ambrise is a Vice President in Beecher Carlson’s Executive Liability Practice in New York. He has a Bachelor of Arts degree with high honors in space History/Political Science and Spanish from Rutgers University and a J.D. from Fordham Law School. Michael is a member of the New York and New Jersey State Bars and the bar of the United States District Court for New Jersey. He is a former claims analyst who specializes in Executive Liability coverages. Michael can be reached at mdambrise@beechercarlson.com.

Bostock  v. Clayton County, 1:16-cv-01460-ODE (11th Cir. 2018); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Equal Emp’t Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018)

2 42 U.S.C. § 2000e-2(a)(1)

3 California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington


This article is intended for informational purposes only. It is not a guarantee of coverage and should not be used as a substitute for an individualized assessment of one’s need for insurance or alternative risk services, nor should it be relied upon as legal advice, which should only be rendered by a competent attorney familiar with the facts and circumstances of a particular matter. Copyright Beecher Carlson Insurance Services, LLC. All Rights Reserved.

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