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Employees Can Be Fired for Being LGBTQ in 26 States. Will the Supreme Court Make That Even Worse?

Jan 2, 2019

By Jessica Mason Pieklo

The Supreme Court on Friday will consider taking three cases that could determine whether an employer can legally discriminate against employees for being LGBTQ. If the Court agrees to hear some, or all, of the petitions, it will be testing both the strength of employment discrimination law under Title VII and retired Supreme Court Justice Anthony Kennedy’s LGBTQ rights legacy.

Two cases, with two different outcomes in the lower courts, present the Court with the question of whether the Title VII of the Civil Rights Act of 1964 prohibitions on discrimination “because of sex” include discrimination on the basis of a person’s sexual orientation. In Altitude Express Inc. v. Zarda, the U.S. Court of Appeals for the Second Circuit held that Title VII does protect an employee from being fired because they are gay. In that case, Donald Zarda, a skydiving instructor, sued Altitude Express, claiming the company fired him for being gay and failing to conform to the “macho” male sex stereotypes of his co-workers. Altitude Express wants the Supreme Court to reverse the Second Circuit. 

The second case involves Gerald Bostock, who alleges he was fired from his job as a child welfare services coordinator for a Georgia county’s juvenile court system after his employer found out he is gay. In May, a three-judge panel from the U.S. Court of Appeals for the Eleventh Circuit ruled in an unpublished per curium decision that Bostock couldn’t sue his employer, because Title VII doesn’t ban discrimination based on sexual orientation. Bostock wants the Supreme Court to reverse the Eleventh Circuit. 

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