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Supreme Court Hears Arguments on Whether Title VII Covers LGBT Discrimination

partial view of two lesbians with laptop and book holding hands while lying under blanket in bed

Title VII of the Civil Rights Act of 1964 prevents employers across the country from discriminating against workers based on protected classes and characteristics, including race, religion, sex, and national origin.  As LGBT rights have expanded across the country, and prohibitions on same-sex marriage were declared unconstitutional by the Supreme Court in 2015, gay rights advocates have pushed for the courts to read Title VII to also cover discrimination based on sexual orientation and sexual identity.  Federal courts around the country have come to differing conclusions on the scope of Title VII, leading the Supreme Court to agree to take up the matter.  Oral arguments were held on the issues on October 8, 2019, and the Court is expected to issue an opinion by next summer at the latest.

Sexual Orientation Discrimination

The first two cases, Bostock v. Clayton County and Altitude Express v. Zarda, were argued together before the Supreme Court.  Both concern whether Title VII’s prohibition on sex discrimination includes prohibition based on a person’s sexual orientation and involve employees who allege they were fired based on their sexual orientation.

The workers and other advocates claim that Title VII’s protections clearly cover sexual orientation:  If a male employee is fired as a result of his relationship with a man, whereas a female employee would not be, then the differing treatment is based on the man’s “sex.”  The argument echoes the dispute in the interracial marriage cases, in which defenders tried to claim that white people were free to marry white people and black people to marry black people and that the laws applied equally to all groups.  Civil rights advocates successfully argued that because the white person is not free to marry the black person, the differing standards were clearly based on the race of the parties involved.  For that reason, anti-miscegenation laws were struck down.

Opponents claim that the proposed read would expand Title VII beyond the plain meaning of the word “sex” and would go beyond what Congress intended when it passed the law.  Clearly, they claim, Congress in 1964 did not intend to protect gay and lesbian individuals from discrimination.  Opponents also rely heavily on the religious freedom of the employers.  Civil rights advocates counter that Congress’s intentions are irrelevant if there is a clear argument based on the actual text of the law.

Gender Identity Discrimination

The third case, R.G. & G.R. Harris Funeral Homes v. EEOC, argued separately, involves a trans woman who was fired by a boss who openly claimed he would violate “God’s command” if he allowed the woman to “deny [her] sex while acting as a representative of [the] organization.”  The worker argues that “sex” discrimination includes discrimination based on adherence to gender norms (and earlier cases have indeed found that policies forcing, for example, specific dress codes for women to follow do indeed constitute discrimination).  Further, like the other two cases, the employee was fired for how she appeared based on the fact that she was born physically a man and would not have been fired had she been born physically a woman.

The cases are poised to change the landscape of Title VII discrimination law for years to come.  It is often difficult to pin down the various justices’ points of view based on their questioning at oral argument. Still, legal analysts and Supreme Court-watchers see conservative Justice Neil Gorsuch as the one most likely to cast the deciding vote.  The other eight justices are generally assumed to split based on their respective political ideologies, with the more liberal justices in favor of an expansive Title VII while the more conservative justices are expected to deny workers those protections in favor of religious freedom and other concerns.  Analysts suggest that Justice Gorsuch may be the one to “cross party lines” based on his strict “textualist” ideology, which counsels him to look strictly at the language of the law rather than at other factors such as the intent of Congress or public policy considerations.  He did bring up the textualism point during oral argument but also suggested that major social change should come from Congress rather than the courts.

If you are an employee with workplace discrimination, wage and hour, or other employee rights concerns in Orange, Riverside, San Bernardino, Los Angeles, or San Diego counties, or a California employer dealing with employment contract or other employment law issues, contact a dedicated and effective California employment law attorney at Coast Employment Law at 714-551-9930 for a free consultation.

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