LGBT Workers’ Federal Civil Rights Back on Supreme Court Radar

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By Jon Steingart

The Supreme Court will consider Nov. 30 whether to grant review in a trio of cases that could decide whether employers can discriminate against LGBT workers without violating federal civil rights law.

The justices could announce the same day whether they’ll take any of the cases they’ve been asked to hear. It takes four willing justices on the nine-member court for it to grant review.

The question before the court in the cases is whether Title VII of the 1964 Civil Rights Act, which bans sex discrimination in the workplace, prohibits discrimination on the basis of gender identity or sexual orientation. A ruling could have far-reaching effects because Title VII case law is cited as precedent in other civil rights contexts, such as Title IX rules prohibiting sex-based discrimination in K-12 schools and universities.

The Justice Department filed a brief Oct. 24 urging the court to find that Title VII doesn’t cover transgender discrimination. Former Attorney General Jeff Sessions last year laid out in a memo the DOJ’s position that the law doesn’t cover sexual orientation discrimination.

The Equal Employment Opportunity Commission’s acting chair told Bloomberg Law the day after the DOJ filed its brief that her agency will continue prosecuting LGBT discrimination according to its determination that Title VII protects gender identity and sexual orientation.

The court scheduled the cases for consideration during a September conference, but it pulled them from that agenda. With Justice Brett Kavanaugh now confirmed, the court may be more willing to decide whether it will hear what could become its highest profile question this term.

The cases are R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC, U.S., No. 18-107, distributed for conference 11/7/18; Altitude Express, Inc. v. Zarda, U.S., No. 17-1623, distributed for conference 11/7/18; Bostock v. Clayton County, Georgia, U.S., No. 17-1618, distributed for conference 11/7/18.

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