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Congressional _______
aResearch Service
~hformrng the Iegislative debate since 1914
Supreme Court Considers Sex Discrimination
Claims by Gay and Transgender Workers
October 11, 2019
On October 8, 2019, the Supreme Court heard oral argument in Altitude Express, Inc. v. Zarda, Bostock v.
Clayton County, Georgia, and R. G. & G.R. Harris Funeral Homes, Inc. (Harris Homes) v. EEOC, a trio
of cases in which the Court is considering for the first time whether the prohibition of employment
discrimination because of ... sex in Title VII of the Civil Rights Act of 1964 (Title VII) encompasses
discrimination based on sexual orientation or gender identity.
This Sidebar provides an overview of Altitude Express, Bostock, and Harris Homes for Congress. The
Sidebar first outlines select Supreme Court precedent interpreting Title VII's prohibition on sex-based
discrimination, then summarizes the facts and arguments in the current cases. The Sidebar concludes by
discussing the potential implications of the cases, including key considerations for Congress.
Title VII and Discrimination Because of Sex
Title VII provides in relevant part that it is an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such individual's
... sex[.] The meaning of that statutory language and its application to sexual orientation and
transgender status is not entirely clear. Title VII does not explicitly address sexual orientation or
transgender status. Moreover, the text of the statute does not include a general definition of what
discrimination because of sex entails. In addition, there is limited legislative history related to the
inclusion of sex as a protected class under Title VII. As a consequence, interpretation of the phrase
because of sex has largely fallen to the courts.
The Supreme Court has observed that Title VII's ban on sex-based discrimination evinces a
congressional intent to strike at the entire spectrum of disparate treatment of men and women in
employment. Thus, the Court has interpreted Title VII to bar the use of an individual's sex as a
qualification for employment, but has also recognized other forms of prohibited sex-based discrimination.
For instance, in Price Waterhouse v. Hopkins, a plurality of the Court construed Title VII to prohibit
employment decisions grounded on sex-based stereotypes about how men or women should behave. The
Supreme Court has also held that Title VII prohibits sexual harassment, including when the harasser and
the victim are of the same sex. Thus, in Oncale v. Sundowner Offshore Servs., Inc., Justice Scalia's
Congressional Research Service
https://crsreports.congress.gov
LSB10352
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govbbjg0001&div=1&collection=&method=preview&ext=.png&size=3)
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