A more conservative Supreme Court than we’ve seen in recent history is poised to consider whether Title VII’s prohibition on discrimination based on “sex” includes sexual orientation and gender identity. The Supreme Court has agreed to hear a trio of cases in the 2019-2020 term, which begins in October. We previously wrote on this topic here as the Circuit split was developing.
Not even the federal government tasked with enforcing employment discrimination laws agrees on whether Title VII covers sexual orientation. The Department of Justice reversed course during the Trump administration and now takes the position that sexual orientation is not covered, whereas the Equal Employment Opportunity Commission is holding firm to its position, first adopted in 2015, that sexual orientation is covered, as is gender identity. Additionally, under an Executive Order signed by President Obama (not yet rescinded by President Trump) and enforced by the Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discriminating against applicants and employees on the basis of sexual orientation and gender identity, in addition to (and separate from) sex.