LGBT Discrimination The U.S. Supreme Court is scheduled to hear a trio of cases involving the protection of lesbian, gay, bisexual, and transgender (LGBT) employees from discrimination in the workplace. The Court’s decision will likely eliminate or clarify what protections LGBT employees have under Title VII.

Michigan Employer Fires Transgender Employee

In 2016, we covered one of the cases before the U.S. Supreme Court, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. In this case, a transgender woman was fired by her Michigan employer because she told her employer she was transitioning. The Michigan district court ruled for Harris Funeral Homes, citing the Religious Freedom Restoration Act (RFRA) and denying the EEOC (Equal Employment Opportunity Commission) their application of Title VII to the case. The EEOC argued that Title VII should have been applied because its ban on sexual discrimination includes discrimination based on gender identity.

The district ruling was appealed to the Sixth Circuit Court of Appeals, which overruled the lower court decision. Specifically, the Court concluded the (i) Funeral Home engaged in unlawful discrimination against its employee based on her sex; (ii) the Funeral Home failed to establish that applying Title VII’s proscriptions against sex discrimination to the Funeral Home would substantially burden its shareholder’s religious exercise, and therefore the Funeral Home is not entitled to a defense under the Religious Freedom Restoration Act (RFRA); and (iii) even if the shareholder’s religious exercise were substantially burdened, the EEOC established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination.

Businesses Show Support in Prohibiting Discrimination Against LGBT Employees

We predicted that the EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. case would work its way up to the U.S. Supreme Court, and we explored the details and conflicts of the RFRA and Title VII. Moreover, as a legal matter that could have important ramifications for businesses, we expected companies to be interested in the outcome of such a case. As this case has run its course, hundreds of companies have expressed their support for protecting LGBT employees against discrimination in the workplace; this outpouring of businesses responding favorably to the LGBT matter was largely unanticipated.

On July 3 of this year, 206 companies filed a brief as amici curiae with the U.S. Supreme Court, urging the Court to protect LGBT employees under Title VII. These companies explain their position as follows:

The 206 businesses that join this brief as amici collectively employ over 7 million employees, and comprise over $5 trillion in revenue… Amici support the principle that no one should be passed over for a job, paid less, fired, or subjected to harassment or any other form of discrimination based on their sexual orientation or gender identity. When workplaces are free from discrimination against LGBT employees, everyone can do their best work, with substantial benefits for both employers and employees.

While these 206 companies have voiced their shared stance on prohibiting discrimination against LGBT employees and Title VII, federal courts remain divided over what protection looks like for LGBT workers under civil rights laws. President Trump’s Justice Department is expected to urge the Supreme Court to deny federal civil rights protections to LGBT employees.

With various opinions across the board on how to address LGBT employees, Title VII, and the RFRA, it’s impossible to tell how the Supreme Court will rule on the matter. We will have to wait and see what comes in this next year, and we will continue to follow this case as it comes before the Supreme Court in October.

If you have questions about this article, complying with state and federal employment laws, or litigating claims under such employment laws, use this link to contact Michigan attorney Jason Shinn. Mr. Shinn has been representing companies and individuals since 2001, specializing in employment discrimination claims under both federal and Michigan employment laws.