For several years, employers have been uncertain whether discrimination based upon sexual orientation is illegal under federal law. Although many states, including Minnesota, have enacted laws prohibiting such discrimination by employers located within their jurisdiction, many have not, leaving federal law as the only source for potential protection in such states. In three cases argued on October 8, 2019, the U.S. Supreme Court will decide whether Title VII of the 1964 Civil Rights Act (“Title VII”) prohibits employers from firing or taking other adverse action against employees due to their sexual orientation or gender identity/transgender status. Two of the cases (Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda) involve gay, male plaintiffs who claim they were fired due to their sexual orientation (with one, a child welfare coordinator, being fired after joining a gay softball league and the other, a skydiving instructor, after disclosing his sexual orientation to a client). The third case (R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC) involves a female, transgender plaintiff who claims she was fired after announcing her transgender status and refusing to wear a suit and tie, which the employer required male employees to wear.
In all three cases, the plaintiffs essentially argued that such discrimination is illegal under Title VII because it explicitly prohibits discrimination on the basis of “sex.” Their basic argument is that discrimination on the basis of sexual orientation or gender identity/transgender status is the same as “sex” discrimination because an employer is treating them differently because of their “sex” or gender in such cases. For example, if an employer fires a man for being gay, he is essentially being fired for dating or having sexual relations with men. But the same employer does not fire a woman for dating men. The same issue arises when an employer fires a man for refusing to wear a suit, but does not fire a woman for insisting upon wearing a dress and not a suit. In both examples, it follows the employer is firing the man due to his sex.
The employers, in all three cases, essentially argued that the term “sex” does not include sexual orientation or gender identity/transgender status, and to claim that Congress intended as such when it passed Title VII in 1964 is preposterous. According to the employers, the plain meaning of “sex” is whether a person was born male or female, and nothing else. Moreover, the employers warned that terrible, unintended consequences will result if such discrimination is prohibited, such as women’s shelters being required to hire men who identify as women to counsel women who have been raped.
During oral arguments before the Supreme Court, some of the conservative justices asked questions expressing concerns that Congress, as opposed to the Court, should address these questions through the legislative process. This is especially true since the issues before the Court are whether Congress, through Title VII, prohibited discrimination on these bases: not whether such discrimination is prohibited under the fundamental rights set forth in the U.S. Constitution. Others expressed concerns for the First Amendment religious rights of employers, whose religion may be opposed to gay marriage, for example. The more liberal justices seemed to rely upon the argument that the term “sex” in Title VII plainly and unambiguously prohibits any action against an employee which would not have been taken if the employee was a different gender.
It is not yet known when the Court will rule in these important cases. Stay tuned.
 In 2015 the Supreme Court held that all 50 states must recognize gay marriages under the First Amendment in Obergefell v. Hodges.