In October of 2019, the Supreme Court heard the arguments of two cases presenting the same inquiry: whether Title VII’s prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation. Currently, twenty-one states as well as the District of Columbia expressly prohibit discrimination based on sexual orientation by statute or regulation. Other states offer protection in the form of agency interpretation or court ruling. However, for the remaining states with no established protections, Title VII stands as the only potential safeguard against sexual orientation discrimination.
The following Commentary considers the case of Gerald Bostock, a gay man from the state of Georgia who was fired from his job in 2013. The Eleventh Circuit held that Title VII does not prohibit discrimination based on sexual orientation, but Bostock appealed the case and was granted certiorari. The Supreme Court consolidated this case with Altitude Express Inc. v. Zarda and allotted a single hour for oral argument that took place on October 8, 2019. The Supreme Court is expected to come to a decision in the first half of 2020.The Court will decide whether to expand the definition of the term “sex” in Title VII to include sexual orientation, which is a desirable policy on its face. Discrimination in the workplace—based on anything other than work performance—is not only archaic, but abhorrent. A redefinition of the term “sex” would also help resolve the circuit court split on the issue. However, these cases might instead push the Supreme Court to make a more consequential decision, one stretching the bounds of Constitutional separation of powers.