SCOTUS Kicks Off October 2019 Term with LGBTQ Cases

The U.S. Supreme Court is back in action, kicking off its October 2019 term with oral arguments in five cases this week. The Court wasted no time in tackling the tough issues. Two of the cases before the Court involve whether federal anti-discrimination protections apply to LGBTQ workers, a question on which the federal courts of appeal are divided.

Two of the cases, Altitude Express Inc. v. Zarda andBostock v. Clayton County, Georgia, allege discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964. In Altitude Express Inc. v. Zarda, the estate of Donald Zardapursued a discrimination suit on behalf of a deceased gay skydiving instructorwho alleged he wasfired after disclosing hissexual orientation. Citing the language of Title VII, the Second Circuit held that “[i]n the context of Title VII, the statutory prohibition extends to all discrimination ‘because of…sex’ and sexual orientation discrimination is an actionable subset of sex discrimination.”

In Bostock v. Clayton County, Georgia, Gerald Bostock alleges that his former employer fired him because of his sexual orientation. He asserts that, after the County learned of his sexual orientation, his participation in a gay recreational softball league, and his promotion of volunteer opportunities with the County to league members, the County falsely accused him of mismanaging public funds as a pretext for terminating his employment because of his sexual orientation. The Eleventh Circuit Court of Appeals held that Title VII does not apply to discrimination based on sexual orientation.

In consolidating the above cases, the justices have agreed to answer the following question: “Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.”

The third case, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, et al., involves claims of discrimination based on transgender status. Aimee Stephens (formerly known as Anthony Stephens) was born biologically male. She filed a complaint with the EEOC alleging that she was wrongly terminated shortly after she informed her employer that she intended to transition from male to female and would represent herself and dress as a woman while at work. The Sixth Circuit Court of Appeals sided with the EEOC, holding that Title VII protects employees from gender identity-based discrimination.

The Court has agreed to decide “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping underPrice Waterhouse v. Hopkins.”

While the LGBTQ employment cases are clearly generating the most buzz, the Supreme Court also considered three other cases. Below is a brief summary of the issues before the justices:

• Kahler v. Kansas: In one of the most closely-watched criminal law cases of the term, the justices must decide whether the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense.

• Peter v. NantKwest Inc.: The intellectual property case will address fee awards in patent cases. The specific question before the Court is “whether the phrase ‘[a]ll the expenses of the proceedings’ in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in Section 145 litigation.

• Ramos v. Louisiana: In another important criminal law case, the justices will determine if right to unanimous jury verdict applies to state criminal trials The exact question the Court will decide is “whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.”