One of the most anticipated decisions of this term will be the three consolidated cases pending in front of the Supreme Court, Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC, which collectively present the question of whether Title VII’s prohibition on discrimination “because of sex” includes discrimination against gay, lesbian, and transgender employees. On October 8, 2019, Prof. Pamela Karlan’s oral argument for Zarda and Bostock centered around one basic hypothetical:
[W]hen you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.