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Two new Title VII cases now before Supreme Court
by Lisa Keen, Keen News Service
2018-06-04

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Two new LGBT-related civil rights cases are at the U.S. Supreme Court, both attempting to reverse important victories won before two different federal circuit courts of appeal.

On Friday, June 1, attorneys representing a New York parachuting business filed an appeal to the high court, seeking reversal of a decision in the Second Circuit U.S. Court of Appeals. The Second Circuit's February 26 ruling in Zarda v. Altitude Express said that the company's firing of an employee because he acknowledged being gay amounted to a form of sex discrimination, prohibited by Title VII of the Civil Rights Act of 1964. "Because one cannot fully define a person's sexual orientation without identifying his or her sex," wrote the court, "sexual orientation is a function of sex."

On May 11, the Alliance Defending Freedom, a group that has led many legal battles against equal rights for LGBT people, asked the Supreme Court for additional time to file its appeal of Stephens v. Harris Funeral. In that decision in March, a three-judge panel of the Sixth Circuit said that "sex" discrimination prohibited by Title VII also prohibits "transgender" discrimination. Justice Elena Kagan granted the Alliance until August 3 to files its petition. This case as two distinctions: One is its focus on whether "transgender" can be read into Title VII's prohibition on "based on sex." The second is that the respondent ( the party winning the case at the circuit level ) is the U.S. Equal Opportunity Employment Commission. While the Commission members recommended a ruling in favor of the transgender employee, Aimee Stephens, it will be up to the Trump administration's Solicitor General to decide whether the federal government will defend that recommendation.

State law in only 21 states currently prohibits sexual orientation discrimination against employees in private or public employment; in 29 states, there is no state law prohibiting discrimination against LGBT people in private employment.

A declaration from the U.S. Supreme Court that Title VII does prohibit sexual orientation discrimination would provide immediate protection to LGBT people in every state in private and public employment.

And a Supreme Court interpretation of Title VII to include sexual orientation could affect how courts interpret laws against "sex" discrimination under other federal laws, such as Title IX of the Education Amendments Act, the Fair Housing Act, and the Affordable Care Act.

Two other federal circuits have issued Title VII-sexual orientation decisions. The Seventh Circuit last year ruled, in Hively v. Ivy Tech, that Title VII does include sexual orientation. The 11th Circuit, in Evans v. Georgia Regional, ruled it does not. The Hively case was not appealed to the Supreme Court. Lambda Legal did appeal the Evans case but the high court refused to hear it.

The Supreme Court could also refuse to hear the Second and Sixth circuit cases. It will likely be September or October before the court indicates whether it will accept one, both, or neither.

Meanwhile, the Supreme Court is expected to rule any day now on another critical case for LGBT people: Masterpiece Cakeshop v. Colorado. That case, argued in December, asks whether a person's First Amendment right —to speech, religion, expression, or association— trumps state laws prohibiting discrimination based on sexual orientation in public accommodations. Public accommodations include a wide variety of businesses serving the general public —restaurants, hotels, taxicabs, and funeral homes, to name a few.

While the court has tended, in the past, to issue its LGBT-related decision on the last day of the session ( typically the last week in June ), it has also typically heard argument in those cases in March. Given that the Masterpiece argument was held in early December, there seems a reasonable possibility the court might issue that decision earlier in this month. But data-based predictions are not reliable with the court. It has issued three decisions of the 11 argued in January and one of the 13 argued in April.

At last count, the court still has 29 decisions to release.

© 2018 Keen News Service. All rights reserved.


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