June was chosen as LGBTQ Pride month in order to commemorate the Stonewall riots, which occurred at the end of June 1969. So it is apropos that this blog discusses the 3 upcoming cases that the Supreme Court will hear this Fall term. They all deal with workplace discrimination based upon sexual orientation.
Securing the right to marry was relatively swift, although to many it seemed that the legal wrangling was similar to walking through quick sand. Many gay and lesbian adults will tell you that when they first experienced same-sex attraction, they were certain that they would never be able to have a legally, publicly sanctioned relationship. Then, in 2003, Massachusetts became the first state to legalize same-sex marriage. Twelve years later, marriage equality became the law of the land.
With that law came tremendous changes for people who were in committed relationships with another person of the same sex. American citizens who were in relationships with non-citizens could secure immigration status. Gay and lesbian parents no longer had to undertake the humiliating process of legally adopting their own (non-biological) children. Partners would not be denied hospital-visitation rights. A great financial burden was lifted for many couples: people could add their partners to their health-insurance plans, couples could file joint federal tax returns, and surviving partners wouldn’t have to pay backbreaking taxes on money or property they inherited from their partners.
However, as with most significant change, there comes a backlash:
- A variety of “religious freedom restoration acts” that effectively sanctioned anti-LGBTQ discrimination were enacted. One, signed in 2015 by Mike Pence, who was then the governor of Indiana, was the so-called “religious freedom” bill. In essence that bill gave business owners the right to refuse service to LGBTQ customers by basing such refusal upon the business owner’s religious beliefs. Because of the uproar made by numerous companies and organizations the law was amended to “ensure” there would not be discrimination based upon sexual orientation and gender identity.
- In 2016, North Carolina passed a so-called “bathroom bill” which required people to use the bathroom designated for the sex they were assigned at birth.
- President Trump reversed President Obama’s policy that transgender Americans could serve openly in the military as well as obtain funding for gender re-assignment surgery. The Supreme Court, in overturning a lower court ruling, allowed the ban to go into effect while the legal fight continues.
The Federal courts have been divided on the question of whether Title VII (a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. It generally applies to employers with 15 or more employees, including federal, state and local governments) bars discrimination based on sexual orientation or gender identity. However, the highest court in the land could soon decide this division once and for all.
The Supreme Court recently announced that it would hear three cases that seek to determine whether existing federal law bans workplace discrimination on the basis of sexual orientation and gender identity. These cases are schedule for this fall. Many, however, think it unlikely that the court’s conservative majority will find that Title VII of the Civil Rights Act of 1964, under its provisions prohibiting sex discrimination in the workplace, protects LGBTQ employees.
Two of the cases that the Supreme Court plans to take up are cases of employment discrimination on the basis of sexual orientation.
Bostock v Clayton County:
This case involves Gerald Bostock, a gay man, who worked as a child welfare services coordinator for Bostock County. During his 10 years of service he received positive performance evaluations. In 2013 Bostock began playing in a gay recreational softball league. Shortly thereafter Bostock received criticism from co-workers for his participation in the league and for his sexual orientation. Around the same time, Bostock was informed that the County would be conducting an internal audit of the funds that he managed. Shortly afterwards, the County terminated Bostock alleging “conduct unbecoming of its employees.” Bostock filed a lawsuit in 2016 alleging discrimination based on sexual orientation under Title VII. The district court dismissed his lawsuit in 2017. He appealed to the 11th Circuit where the judges agreed with the lower court and ruled that Title VII does not cover sexual orientation.
Altitude Express v. Zarda:
Donald Zarda was a skydiving instructor for a Long Island, New York company. Part of his job was to participate in tandem skydives with clients. Because he had to be strapped closely to the female clients he would, at times, tell them that he was gay to assuage any concerns about being strapped to a male. On one occasion Zarda told a female client that he was gay and then performed the tandem jump. The female client alleged that Zarda had touched her inappropriately and had disclosed his sexual orientation to excuse his behavior. In response to the client’s complaint, the company fired Zarda although Zarda denied touching the client. Zarda filed a lawsuit in district court alleging a violation of Title VII by terminating him because of his sexual orientation. The district court ruled in the company’s favor finding that Title VII does not protect against discrimination based on sexual orientation. On appeal the 2nd Circuit ruled for Zarda holding that Title VII’s prohibition on discrimination because of sex necessarily includes discrimination because of sexual orientation.
R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens:
The third case, from Michigan, concerns a transgender woman who was fired from her job at a funeral home because of her gender expression. Aimee Stephens worked for six years as a funeral director and received great reviews. Her boss and co-workers knew her as a man, but she always knew she was a female. In 2013, Aimee came out to her boss as the woman she is. Her boss fired her making it clear it was because she was transgender. The court in the Sixth Circuit ruled that she was protected by Title VII.
These cases raise the question of discrimination against gay, lesbian and transgender workers. A decision in the challengers’ favor would certainly mark an important step in the effort to protect the LGBTQ community from discrimination in employment, housing ad public accommodations. However, as currently constituted, the Supreme Court could likely rule that the Civil Rights Act does not ban discrimination against LGBTQ people. This would be the kind of legal backlash that could take a generation to undo.
If the Supreme Court decides that it is acceptable to fire someone because they are lesbian, transgender or gay, other federal civil rights laws may not protect LGBTQ people, either. For example, the federal education anti-discrimination law may not stop schools from harassing transgender students. The Federal Housing Act may not stop landlords from evicting same-sex couples.
Think about your workplace. Are you a valued member because of how you perform your job? Do you get demoted or fired because you don’t look like the rest of your co-workers or because of whom you love? What a travesty it would be to have workers judged on their identities instead of their performances. Think about it.
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