Why Employers Should Pay Attention to these SCOTUS Cases

Courts across the country have been divided in recent years on whether federal law protects LGBT workers from discrimination—but that may soon be a settled matter, as the U.S. Supreme Court announced Monday it would consider a trio of cases centered on that question.

Efforts to advance federal legislation to explicitly protect LGBT workers from discrimination in employment and other areas have stalled for years, yet a number of courts have interpreted discrimination based on one’s sexual orientation or gender identity to be a form of sex discrimination—prohibited under Title VII of the Civil Rights Act of 1964. That’s a finding supported by Altitude Express Inc. v. Zarda, one of the three related cases SCOTUS accepted this week, in which the Second Circuit in New York sided with the plaintiff, a sky-diving instructor who alleged he was fired for being gay. The top court will also consider Bostock v. Clayton, in which appellate judges in Georgia came to the opposite conclusion, finding Title VII did not protect a child-welfare worker who contended his employer terminated him because of his sexual orientation.

Also included on the SCOTUS docket is R.G. & G.R. Harris Funeral Homes v. EEOC, in which a transgender employee of a funeral home won her employment-discrimination case after a federal appeals court in Ohio ruled Title VII’s sex-discrimination clause extends to bias motivated by someone’s gender identity.

SCOTUS is expected to issue its rulings by next summer.

Jason Habinsky, partner in the Labor and Employment Practice Group in the New York office of Haynes and Boone, said SCOTUS’ decision to wade into the issue on a national scale should “serve as a wake-up call to employers who have not yet embraced workplace protections for employees who may fall within these protected categories.”

Currently, 21 states plus Washington, along with hundreds of local municipalities, prohibit employment discrimination against LGBT workers—and SCOTUS could fill in the gaps created by that patchwork of laws. Ahead of the top court releasing its decisions, companies headquartered in states lacking LGBT protections—or those with operations in such locales—should move now to explicitly include sexual orientation and gender identity as classes protected from discrimination, Habinsky advises.

“Employers should begin ensuring that applicable company policies and procedures fully embrace these important prohibitions,” Habinsky says. “Moreover, employers should also provide training and education to their decision-makers and employees to make certain that they understand the breadth and import of workplace protections against discrimination on these bases.”

In a legal alert issued today, attorneys with law firm Fisher Phillips also advised employers of the potential implications from the pending decisions: “Monitor the progress of these cases,” they write, “as they may require you to adjust your policies and practices to mirror current standards. A definitive statement by the Supreme Court permitting LGBT employees to bring Title VII claims will mean that you need to revise your handbooks, your training and orientation materials, and your overall approach to workplace relations.”