WASHINGTON _ The Supreme Court agreed Monday to decide whether the federal law that bans sex discrimination in the workplace also protects gay and transgender employees from being fired or not hired.
The three cases to be heard in the fall figure to be the most important civil rights dispute since the court's ruling four years ago upholding same-sex marriages nationwide.
More than 20 states, including California, expressly prohibit discrimination against gay, lesbian and transgender persons in the workplace. But Congress has not adopted a similar provision in federal law.
The Civil Rights Act of 1964 made it illegal for employers to discriminate against individuals because of their race, sex, religion or national origin. Several appellate courts have recently ruled that discrimination based on sexual orientation or transgender status is illegal sex discrimination.
In doing so, those judges agreed that Congress in 1964 did not intend to protect gay, lesbian or transgender persons, but they said the wording of the law applies broadly to discrimination based on sex.
They relied on a principle often espoused by the late conservative Justice Antonin Scalia. He said judges should interpret laws based on their words, not on the intent of the lawmakers. In one famous example, Scalia spoke for the court in a 1998 ruling that allowed a male worker on an oil drilling platform to sue for sexual harassment by other male workers.
"Male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with," Scalia wrote in Oncale v. Sundowner Offshore Services. "But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."
Lower court judges have cited that precedent to clear the way for discrimination claims brought by gay and transgender employees.
In one case, the 2nd U.S. Circuit Court of Appeals in New York ruled last year for Donald Zarda, a skydiving instructor who was fired after disclosing that he was gay. He later died in an accident, but his estate carried on the lawsuit against Altitude Express, his employer.
"We now hold that Title VII (of the Civil Rights Act) prohibits discrimination on the basis of sexual orientation as discrimination 'because of ... sex,'" the 2nd Circuit said. "Legal doctrine evolves," the judges said, noting that in 2015, the Equal Employment Opportunity Commission, which enforces the federal law, "held for the first time that sexual orientation is inherently a sex-based consideration. Accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII," the court found.
The Supreme Court voted to hear Altitude Express' appeal, along with two related cases. They will also decide in Bostock vs. Clayton County, from Georgia, in which courts rejected a discrimination claim.
The third case, R.G. & G.R. Funeral Homes vs. EEOC, involves a transgender woman from Michigan. The 6th U.S. Circuit Court of Appeals based in Cincinnati ruled last year for Aimee Stephens after she was fired from her job as a funeral director in Michigan. She was born biologically male, the court noted, and she was fired shortly after she informed the owner of the funeral home that she was transitioning to female.
Lawyers for the EEOC sued her employer on her behalf, and she won at the appeals court. "We hold that the funeral home engaged in unlawful discrimination against Stephens on the basis of her sex," said Judge Karen Nelson Moore.
