Observers noted a sharp divide among the United States Supreme Court Justices during oral argument of three cases before them on October 8, 2019. At issue before the Court was whether the prohibition against discrimination on the basis of “sex” in federal Title VII includes protection from discrimination for the LGBTQ community. The Court previously ruled unanimously in 1998 that sexual harassment in employment between members of the same sex is illegal under Title VII, but the federal circuit courts have split regarding whether that prohibition applies to other forms discrimination against members of the LGBTQ community.
The Court’s four so-called “liberal” Justices strongly indicated support for finding that Title VII’s prohibition on discrimination based on sex covers employment discrimination that occurs because of the employee’s sexual orientation or transgender status. For example, Justice Sonia Sotomayor called LGBTQ discrimination “insidious behavior” covered by Title VII. The Court’s other five Justices, who are considered “conservatives”, were either quiet (Justices Kavanaugh and Thomas), or indicated at least reluctance to extend Title VII to LGBTQ discrimination instead of having Congress clarify the issue (Justice Gorsuch). Justice Alito was the most skeptical of the conservatives, stating that plaintiffs and their attorneys were attempting “to change the meaning of what Congress understood sex to mean in 1964 (when Title VII was passed)”.
All discrimination against members of the LGBTQ community is already illegal under the New York State Human Rights Law, but if that right is extended to Title VII it will give plaintiffs and their attorneys significant, additional options in pursuing relief. Indeed, one of the three cases at issue before the Court was brought by a plaintiff from New York. The Court is expected to issue its Decision in the Summer of 2020.
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