Shannon Kelly of Allen Norton & Blue.

In 2020, the U.S. Supreme Court is expected to issue decisions in three cases that will determine whether discrimination based upon gender identity and sexual orientation is covered under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII is a federal law that bars employment discrimination on the basis of several protected classes including race, religion, national origin and, as relevant to these cases, barring employment discrimination "because of … sex."

These decisions are expected to have a far-reaching impact and are being closely monitored both by employers and the LGBT community. Currently, 21 states and the District of Columbia expressly prohibit discrimination on the basis of sexual orientation and gender identity. These cases are expected to resolve a split that has developed between the federal circuits regarding whether federal law prohibits employment discrimination on the basis of sexual orientation and gender identity. Gender identity is a person's internal sense of being male or female, a blend of both or neither. Sexual orientation refers to the relative genders of an individual's partners.

The three cases before the court are Bostock v. Clayton County, Georgia, on appeal from the U.S. Court of Appeals for the Eleventh Circuit, Altitude Express v. Zarda, on appeal from the U.S. Court of Appeals for the Second Circuit and R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, on appeal from the U.S. Court of Appeals for the Sixth Circuit.

The Bostock and Zarda cases involved the terminations of employees who allege that they were discriminated against on the basis of their sexual orientation. The petitioner in the Bostock case, Gerald Bostock, a child-welfare-services coordinator in Clayton County, Georgia. Bostock's suit alleged that he was falsely accused of mismanagement of public funds after the county learned that he was homosexual. The county argued that Title VII does not apply to discrimination based on sexual orientation. The district court ruled in favor of the county, and the U.S. Court of Appeals for the Eleventh Circuit upheld that ruling.

The petition for review in the Zarda case was filed by Altitude Express, a New York skydiving company. After the company fired Donald Zarda, who worked as an instructor for the company, Zarda filed suit alleging that he was terminated in violation of Title VII due to his sexual orientation. The district court dismissed Zarda's claim, reasoning that Title VII does not allow claims alleging discrimination based on sexual orientation On appeal, the Second Circuit reversed that holding, concluding that Title VII does apply to discrimination based on sexual orientation.

The Harris case involves a funeral director, Aimee Stephens. Shortly after announcing her intent to live in conformance with her gender identity, Stephens was terminated. Stephens filed suit alleging she was terminated because she is transgender, which she alleged violated Title VII. Her employer, Harris Funeral Homes, alleged that requiring it to continue to employ Stephens burdened the owners' religious exercise under the Religious Freedom Restoration Act (RFRA) and argued that a transgender employee's presence would present a distraction to serving grieving families. On appeal, the Sixth Circuit determined that Stephens was entitled to bring suit both based upon the express language of Title VII as well as a sex stereotyping theory. Sex stereotyping occurs when discrimination occurs based upon a preconceived idea about how someone should be, act,or behave based on stereotypes regarding that person's sex. This theory of sex discrimination was first recognized by the Supreme Court 30 years ago and thus far only applied to individuals alleging that they were discriminated against for failing to conform to stereotypes of their gender assigned at birth.

On Oct. 8, the Supreme Court heard oral argument in the three cases. While it is unclear based on oral argument how the justices may ultimately rule, the justices at times seemed sympathetic to the arguments of the employees' counsel, as well as concerned regarding what Justice Neil Gorsuch described as the "massive social upheaval" that could occur from a ruling for the employees.

While a ruling is expected in the new year, should the court's decisions determine that sexual orientation and gender identity are not covered under Title VII, any future amendment to Title VII to cover sexual orientation and gender identity would be left to Congress.

Shannon Kelly is a shareholder with the Miami-based law firm Allen Norton & Blue, a statewide firm devoted exclusively to the practice of labor and employment law. Contact her at [email protected].