The Supreme Court will review three cases related to sexual orientation-based discrimination under Title VII of the Civil Rights Act of 1964.

The three cases  – EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) where plaintiff filed suit against employer claiming wrongful termination due to the employee’s intent to transition genders; and Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Bostock v. Clayton County Board of Commissioners, 723 Fed. Appx. 964 (11th Cir. 2018), both related to an employee claiming he was terminated because of his sexual orientation.

*Update*

A recent amicus brief filed supporting employees in cases regarding sexual orientation and gender identity offers new hope to those searching for an update to Title VII of the Civil Rights Act.

What Does Title VII Protect Against?

Title VII protects employees against discrimination in the workplace based on gender, race, color, origin and religion. However, Title VII has not yet been interpreted to protect against discrimination based on sexual orientation nor is there a federal statute that specifically protects workers based on their sexual orientation.

In the last eight years, the Equal Employment Opportunity Commission (EEOC) has argued that Title VII already implicitly protects against sexual orientation-based discriminatory work environments. The contention over the rulings of these cases and how sexual orientation discrimination will be regarded in future cases has left the appellate courts in a circuit split, with the Second and Seventh Circuits supporting the EEOC’s stance, while the other 11 have not.

Is Sexual Orientation a Protected Class in North Carolina?

North Carolina Federal District Courts and the 4th Circuit Court of Appeals have not included sexual orientation as a protected class under federal law. Specifically, seven North Carolina federal courts have all rejected sexual orientation as protected under Title VII.

The most recent, Herr v. Am. Kennel Club, 2018, where plaintiff claimed wrongful termination based on his sexual orientation as heterosexual, was rejected for this reason; another case from 2018, Brown v. Walmart Stores E., where plaintiff claimed she was fired for identifying as a lesbian, was rejected for the same reasoning.

Have there been Precedents Set?

Even reaching farther back to 2016, with Berger v. United States DOJ, one can see North Carolina’s legislature’s stance on issues of sexual orientation: In response to the United States Department of Justice’s determination that HB2 violated Title VII, President of the North Carolina Senate, Phil Berger, and House Speaker, Tim Moore, filed for a consolidation of several cases into one omnibus case against the United States Department of Justice for what was claimed to be federal overreach in the matter. 

What Does the Future Hold For Sexual Orientation as a Protected Class in North Carolina?

As the cases suggest, North Carolina has fought to prevent the inclusion of sexual orientation as a protected class, adhering to a literal interpretation of Title VII discriminations despite EEOC efforts to broaden the definition to include implied classes. The Supreme Court’s decisions on these cases are expected by the summer of 2020 and will not only more clearly define the protections Title VII provides to LGBTQ employees in the workplace, but also hopefully finally settle the debate over whether federal law prohibits the discrimination of employees in the workplace based on their sexual orientation.

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