Federal courts are divided over whether sexual orientation bias should be considered under Title VII, which prohibits discrimination on the basis of sex, race, color, national origin and religion. The U.S. Supreme Court is weighing two cases that contend Title VII does include protections against sexual orientation discrimination. The justices soon could announce whether they will resolve the question.

“We're left with what is the meaning 'because of sex.' The EEOC believes that 'because of sex' incorporates sexual orientation discrimination,” EEOC lawyer Gail Coleman argued Wednesday in front of Judges James Loken, Roger Wollman and David Stras. “The very definition of who is gay or lesbian—you can't define it without considering sex.”

Coleman faced questions from the appellate panel about whether the EEOC was advancing a policy argument rather than a statutory one. One judge asked whether a ruling that recognized sexual orientation discrimination would go beyond the words Congress used in Title VII. The panel also noted that some states have specifically identified sexual orientation as a protected category in human rights legislation.

Coleman said the fact Congress did not include “sexual orientation” in Title VII does not doom the agency's position and Horton's claim against St. Louis-based Midwest Geriatric Management. She urged the court to embrace a “belt and suspenders” approach to interpreting the reach of Title VII.

Arguing for Midwest Geriatric Management, Neal Perryman of the St. Louis firm Lewis Rice asked the appeals court to avoid weighing into public policy issues and societal concerns—”not that they're not important questions for someone to answer, but it's not for this panel.”

Major U.S. companies including Microsoft Corp., Airbnb Inc., eBay Inc., and Viacom Inc. filed an amicus brief in the Eighth Circuit backing Horton. The brief, filed by a team from Quinn Emanuel Urquhart & Sullivan, said the companies ”support the notion that no one should be passed over for a job, paid less, fired, or subject to harassment or any other form of discrimination based on nothing more than their sexual orientation, which is inherently sex-based.”

The Supreme Court could soon announce whether the justices will hear arguments next term in the cases Altitude Express v. Zarda from the U.S. Court of Appeals for the Second Circuit, Bostock v. Clayton County from the Eleventh Circuit and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission from the Sixth Circuit.

The Zarda and Bostock cases ask the justices whether “because of sex” includes an individual's sexual orientation. The R.G. & G.R. Funeral Homes case asks whether the word “sex” includes gender identity. The Trump-era U.S. Justice Department has urged appeals courts, and the U.S. Supreme Court, not to broaden the scope of Title VII. The department's position is at odds with that of the EEOC.

“We should all be paying attention to whether or not they grant cert or deny cert in the Bostock and Zarda cases,” Nevins told the Eighth Circuit panel Wednesday.

Read more:

• A tipping point for LGBT policies in the workplace
• These are the issues labor and employment attorneys are watching
• Despite diversity efforts, half of LGBT workers stay closeted