Supreme Court to rule whether civil rights law bans discrimination against LGBTQ employees

WASHINGTON — The Supreme Court said Monday it will decide whether existing civil rights laws ban discrimination on the basis of sexual orientation, a question that has divided the nation's lower courts.

Federal law forbids workplace discrimination on the basis of race, color, religion, sex or national origin. It does not explicitly apply to LGBT individuals, but gay rights advocates have argued that firing employees because of their sexual orientation is already prohibited as a form of sex discrimination under Title VII of the Civil Rights Act. They've been hoping to achieve in the courts what they have so far been unable to get in Congress — a nationwide ban on job discrimination.

The cases accepted Monday reflect the split among federal courts. Two appeals courts ruled that employers violated Title VII by firing gay and transgender employees. A third said civil rights laws don't cover sexual orientation.

For decades, every federal appeals court to consider whether gay employees are entitled to non-discrimination protection ruled that they are not. But advocates of LGBT rights argued that support for that position has been eroding. In 1989, the Supreme Court said Title VII bans discrimination based on an employee's failure to act according to sex-based expectations, ruling for a woman denied a promotion who was told to walk, talk, and dress femininely, wear make-up and jewelry, and have her hair styled.

In 1998, the court ruled that a heterosexual offshore oil rig worker could sue for sex discrimination even though he was sexually harassed by other men on the job. Congress didn't have that kind of discrimination in mind when the civil rights law was passed in 1964, the Supreme Court said, but "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils."

The federal Equal Employment Opportunity Commission concluded in 2015 that Title VII does protect against LGBT job discrimination. The Obama Justice Department took the same position, but under President Trump it reversed course, opposing that conclusion.

Supreme Court Justices
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Supreme Court Justices

John Roberts, Chief Justice

Born: 1955

Joined Supreme Court: 2005

Appointed by: George W. Bush

Votes: Conservative

US Supreme Court Chief Justice John Roberts is followed by Elena Kagan on her way to take the Judicial Oath to become the 112th US Supreme Court justice, in Washington on August 7, 2010. (Photo credit should read PAUL J. RICHARDS/AFP/Getty Images)

Ruth Bader Ginsburg

Born: 1933

Joined Supreme Court: 1993

Appointed by: Bill Clinton

Votes: Liberal

(Photo by Dennis Brack/Bloomberg via Getty Images)

Anthony Kennedy

Born: 1936

Joined Supreme Court: 1988

Appointed by: Ronald Reagan

Votes: Conservative/Center

U.S. Supreme Court Justice Anthony Kennedy listens to opening statements during a Financial Services and General Government Subcommittee in Washington, D.C. Photographer: Pete Marovich/Bloomberg via Getty Images

Clarence Thomas

Born: 1948

Joined Supreme Court: 1991

Appointed by: George H.W. Bush

Votes: Conservative

U.S. Supreme Court Justice Clarence Thomas testifies during a hearing before the Financial Services and General Government Subcommittee of the House Appropriations Committee April 15, 2010 on Capitol Hill in Washington, DC.(Photo by Alex Wong/Getty Images)

Stephen Breyer

Born: 1938

Joined Supreme Court: 1994

Appointed by: Bill Clinton

Votes: Liberal/Center

United States Supreme Court Justice Stephen Breyer speaks at the Harvard University Institute of Politics John F. Kennedy School of Government John F. Kennedy Jr. Forum on November 6, 2015 in Cambridge, Massachusetts. (Photo by Paul Marotta/Getty Images)

Samuel Alito

Born: 1950

Joined Supreme Court: 2006

Appointed by: George W. Bush

Votes: Conservative

U.S. Supreme Court Associate Justice Samuel Alito speaks during the Georgetown University Law Center's third annual Dean's Lecture to the Graduating Class in the Hart Auditorium in McDonough Hall February 23, 2016 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

Sonia Sotomayor

Born: 1954

Joined Supreme Court: 2009

Appointed by: Barack Obama

Votes: Liberal

Associate Justice, Supreme Court of the United States Sonia Sotomayor discusses her book 'My Beloved World' presented in association with Books and Books at Bank United Center on February 1, 2013 in Miami, Florida. (Photo by Vallery Jean/FilmMagic)

Elena Kagan

Born: 1960

Joined Supreme Court: 2010

Appointed by: Barack Obama

Votes: Liberal

Associate Justice of the U.S. Supreme Court Elena Kagan speaks onstage at the FORTUNE Most Powerful Women Summit on October 16, 2013 in Washington, DC. (Photo by Paul Morigi/Getty Images for FORTUNE)
U.S. Supreme Court Justice Neil Gorsuch participates in taking a new family photo with his fellow justices at the Supreme Court building in Washington, D.C., U.S., June 1, 2017. REUTERS/Jonathan Ernst

Among the cases to be heard next term are an appeal from a ruling in favor of a New York skydiving instructor, Donald Zarda, who said he was fired after telling a female client that he was gay so she shouldn't worry about being strapped tightly against him during the dive. The Second Circuit Court of Appeals said sexual orientation discrimination is a subset of sex discrimination.

The Sixth Circuit Court of Appeals said a woman who worked for a Michigan funeral home was impermissably fired two weeks after she told her employer she was transgender. Her employer said she did not follow the dress code, but the court said transgender discrimination is prohibited by Title VII.

"Discrimination 'because of sex' inherently includes discrimination against employees because of a change in their sex," it said.

In the third case, the Eleventh Circuit Court of Appeals ruled against a Georgia man who lost his job with Clayton County after his participation in a gay softball league became known to his employer. That court said the civil rights law does not cover sexual orientation discrimination.

Because of the split among the lower courts, advocates on both sides of the issue were urging the Supreme Court to correct what they said were erroneous rulings.

The court will hear the cases in its next term which begins in October.

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