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The Supreme Court on Monday took up job discrimination cases that could for the first time resolve at a national level whether lesbian, gay, bisexual and transgender workers can be fired based on their identity.
The cases come as federal courts as well as independent agencies within the Trump administration remain divided over whether Title VII of the Civil Rights Act, which says that employers may not discriminate based on "sex," prohibits discrimination based on sexual orientation and gender identity.
There is no national law that explicitly bars discrimination on those grounds. State and local laws barring such discrimination do exist. About half of the country's LGBT population lives in states that allow employment discrimination based on sexual orientation or gender identity, according to MAP, an LGBT advocacy think tank.
"The impact of this decision will have very real consequences for millions of LGBTQ people across the country," Sarah Warbelow, the legal director for the Human Rights Campaign, the nation's largest LGBTQ civil rights organization, said in a statement.
The Trump administration has argued before the Supreme Court that Title VII does not apply to LGBT individuals. Meanwhile, the Equal Employment Opportunity Commission, which is also a part of the administration, maintains the opposite stance. Last term, the Supreme Court had the opportunity to hear a case on the issue but declined.
"There's definitely a lot at stake here," James Esseks, a civil rights attorney who served served as counsel in Obergefell v. Hodges, the landmark 2015 case affirming the right to same-sex marriage, told CNBC over the summer. "Are LGBT people protected from discrimination in a way that most other people in the country are, or are we not?"
While the court has never ruled on whether employers may discriminate on sexual orientation, in the 1989 case Price Waterhouse v. Hopkins the court held that it is impermissible to discriminate based on gender stereotypes.
Jason Habinsky, a partner in the Labor and Employment Practice Group in the New York office of Haynes and Boone, said that a ruling granting protection to LGBT employees would not affect many companies who already have policies in place shielding them from discrimination. For other companies, he said, it could be a wake-up call.
"This could serve as an alarm bell for certain employers who are not yet protecting those rights, and who fall in those pockets of the country where there are no laws and no protections," Habinsky said.
The cases are the first on the issue of LGBT rights before a newly constituted court following the retirement of Justice Anthony Kennedy in July. Kennedy was a champion of gay rights on the court. His replacement on the bench by Justice Brett Kavanaugh could be significant in the court's eventual decision on the matter.
Sarah Kate Ellis, the CEO of GLAAD, an LGBTQ advocacy group, wrote in a post on Twitter that Trump's appointment of "anti-LGBTQ judges" made it "clear that we need a constitutional amendment that protects LGBTQ people and all marginalized communities."
The sexual orientation cases concern two employees who argue that they were fired for being gay. In one case, Altitude Express v. Zarda, No. 17-1623, Donald Zarda, who was a skydiving instructor, sued his former employer and alleged that he was fired because of his sexual orientation.
Zarda died in an October 2014 base-jumping accident, but his family pressed forward with the case on his behalf. In early 2018, the U.S. 2nd Circuit Court of Appeals ruled in his favor. A 10-4 majority found that discrimination on the basis of sexual orientation violates the Civil Rights Act.
In another case, Bostock v. Clayton County, Georgia, No. 17-1618, a child welfare services coordinator is suing Clayton County, a Georgia county south of Atlanta, for terminating him in 2013 after discovering his involvement in an LGBT softball league.
That case had the opposite result as Zarda's at the appellate level. Bostock's case was dismissed by a federal district court in Atlanta, and that dismissal was later affirmed by a panel of the 11th U.S. Circuit Court of Appeals.
The panel found that discrimination based on sexual orientation is not protected by Title VII. The judges reasoned that "we cannot overrule a prior panel's holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued."
The 11th Circuit declined to hear the case en banc. In a sharply worded dissent from that denial, Judge Robin Rosenbaum cited a report showing that 25 percent of LGBT Americans reported experiencing workplace discrimination. She accused the majority of relying for precedent on a 1979 case that was decided ten years before Price Waterhouse, the gender stereotyping case.
Price Waterhouse, she wrote, "requires the conclusion that Title VII prohibits discrimination against gay and lesbian individuals because their sexual preferences do not conform to their employers' views of whom individuals of their respective genders should love."
The final case the court agreed to take involves Aimee Stephens, a transgender woman who was fired from her job as a funeral director at R.G. and G.R. Harris Funeral Home two weeks after she told her boss that she was a woman. While the other cases involve sexual orientation, Stephens' case is a dispute concerning her gender identity.
The U.S. 6th Circuit Court of Appeals ruled in Stephens' favor, finding that discrimination "on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex."
Decisions in the cases are expected by June 2020.