An issue that has been long-pegged for Supreme Court review — whether sexual orientation and transgender status are federally protected from discrimination — is set for argument next term.
On April 22, the U.S. Supreme Court announced it will hear three cases in which plaintiffs claimed their former employers fired them because of their LGBTQ status. Two of the cases involve employees claiming discrimination based on their sexual orientation — which the court consolidated — and one involves a discrimination claim based on the plaintiff being transgender. All three plaintiffs argue that the prohibition on sex-based discrimination in Title VII of the Civil Rights Act of 1964 covers LGBTQ discrimination.
Even if the Supreme Court were to expand Title VII’s workplace protections through these cases, it would have limited impact on employers in Colorado, who have long been subject to the state’s own LGBTQ antidiscrimination law.
In the next term, the court will hear oral arguments in Altitude Express v. Zarda, in which a former skydiving instructor alleged his employer fired him for being gay. The district court dismissed his Title VII claim, but the 2nd Circuit Court of Appeals revived it, reasoning that discrimination based on sexual orientation falls under sex discrimination.
The court will consolidate arguments in Altitude Express with Bostock v. Clayton County, Georgia, which involves a former county court administrator with similar claims. In that case, the 11th Circuit took a more limited view of Title VII and upheld the district court’s dismissal of Bostock’s claim.
Lastly, the court granted cert to a case brought by the Equal Employment Opportunity Commission on behalf of a transgender plaintiff. In that case, R.G. & G.R. Harris Funeral Homes v. EEOC, a former funeral director claims she was fired when she announced she would no longer present as male and would dress as a woman. The 6th Circuit supported the EEOC’s interpretation that Title VII includes protections for transgender employees.
While the Supreme Court’s eventual rulings on these cases will determine whether employers would be liable for LGBTQ-based discrimination under federal law, such is already the case for them under many state statutes, including Colorado’s. Since 2008, the Colorado Anti-Discrimination Act has made it illegal to discriminate on the basis of sexual orientation or gender identity.
The EEOC has in recent years sued employers under the theory that Title VII protects LGBTQ status. “They’ve already taken that position and even maintained that during the Trump administration,” said Sterling LaBoeuf, an associate at Davis Graham & Stubbs whose practice focuses on labor and employment issues. Even if the Supreme Court were to agree with the EEOC’s position, it wouldn’t make much of a difference to Colorado employers, he added.
Granted, a Supreme Court decision on LGBTQ workplace discrimination would draw more public attention to the issue, LaBoeuf noted. “There’s going to be a ton of publicity around it, and it could lead to an uptick in claims in Colorado just for that reason.” If the court expands Title VII to discrimination based on sexual orientation and gender identity, it would fully open up the federal courts to those claims as well, LaBoeuf said.
In the meantime, federal LGBTQ discrimination claims are getting results in Colorado. On April 8, the EEOC announced that Colorado-based A&E Tire Co. agreed to pay $60,000 to settle sex discrimination claims based on the plaintiff being transgender. According to the EEOC’s suit, Egan Woodward was offered a job by A&E, but it withdrew the offer after learning he had checked “female” on his background screening consent form.
U.S. District Court Judge R. Brooke Jackson denied A&E’s motion to dismiss the lawsuit in September, finding that “the plaintiffs have stated a plausible claim” that A&E refused to hire Woodward because “he did not conform to the sex-based expectations of a person born a woman.” But Jackson’s decision was limited to the sex-stereotyping theory — he declined to weigh in on whether transgender individuals can claim protection under Title VII based solely on their gender identity.
Colorado employers have been working with transgender discrimination protections for more than a decade, including common issues that involve dress codes and bathroom policies. But for the most part, transgender discrimination claims haven’t been a hot-button workplace issue for Colorado employers, LaBoeuf said.
“As a practical matter they don’t come up that often, and they’re usually able to be dealt with on a case-by-case basis,” he added. “Employers usually don’t receive complaints about [transgender bathroom policies] from other employees,” LaBoeuf said. “Part of that could be just the culture of Colorado. It’s a pretty inclusive state.”
— Doug Chartier