How New Supreme Court Discrimination Case Could Affect LGBTQ Workers
On Monday, the Supreme Court agreed to consider cases of discrimination against three LGBTQ workers in the workplace – a key decision that could well lead to changes in protections for LGBTQ workers across the country. What’s hanging by a thread? When will the decision be made? Here’s what you need to know about how important the next year will be for the LGBT community.
What cases are being considered?
Two Cases, Bostock v. Clayton and Altitude v. Zarda, concern two LGBT workers arguing discrimination on the basis of sexual orientation. Gerald Bostock said he was fired from his position as child protection coordinator after he was discovered to be gay in Clayton County, Georgia. The late Don Zarda was fired from his job as a parachuting instructor after his employer, Altitude Express Inc., allegedly found out he was gay. (His claim is now served by his estate, which is managed by his sister and partner.)
The third includes discrimination based on gender identity; In 2013, Amy Stevens informed her boss that she was on the move and was fired shortly thereafter.
The Supreme Court is being asked to consider whether Title VII of the 1964 Civil Rights Act protects employees from discrimination on the basis of sexual orientation and gender identity, CNN reports .
What is the Civil Rights Act 1964?
The Civil Rights Act of 1964 is pivotal in US history as an anti-discrimination law; Section VII deals in particular with employment issues. “It unlawfully discriminates against anyone in terms of employment on the basis of race, color, religion, sex or national origin,” Gregory Nevins, senior attorney at Lambda Legal , said by telephone. “The words ‘sexual orientation’ and ‘gender identity’ do not appear in the statute, but it was also a law passed in 1964, so it was not something that was discussed or in sight.”
What matters are they trying to argue?
There are small nuances here; many defenders argue that Title VII already protects LGBTQ people. “In 1964, radar highlighted the prohibition of discrimination against women and men who were in the same position as their peers,” Nevins said. “For example, in New Orleans 5th arrondissement, the employer had a rule that [with] workers with small children, women could not keep their jobs, but men could. The Supreme Court basically said, “This law does not allow one policy for men and [another] policy for women who both have young children.”
Defenders argue that Title VII should already protect LGBTQ workers because this is a case of gender discrimination; As Rolling Stone put it, you cannot fire a woman for being attracted to women if the man is also attracted to women and still maintains his job – this is a case of gender discrimination, and thus LGBTQ workers are entitled to protection. For transgender people, this is relatively similar; if a given person does not correspond to certain gender stereotypes, this can be considered as gender discrimination.
Can states fire workers for being LGBTQ?
Yes, also an amazing amount. About 22 states protect against discrimination based on gender identity or sexual orientation (and not necessarily both), Nevins said. However, some local city ordinances may also provide additional protection for LGBT workers in states where protection is not provided. There is currently no federal law prohibiting discrimination against LGBTQ people in employment.
Does this mean that affirmative action can protect workers everywhere?
Yes! This could well lead to the protection of LGBT workers in all 50 states, for the first time, Nevins said.
What happens if things don’t go as planned?
While this is not the desired outcome, if things are not successful, it’s not all bad. LGBTQ workers in states that already have remedies don’t lose them, Nevins said, so there is no risk.
There is also the Equality Act , which is currently in Congress. If passed, this law will protect LGBT workers in a number of areas, including housing, loans, education, public space and employment. “He is tackling these problems on a larger scale,” he said. “In the worst case, in the Supreme Court, the Equality Law will take care of all the bad things the Supreme Court can do.” But don’t be too complacent – the Equality Act has failed twice in Congress in the past, so it’s hardly a guarantee.
What happens next?
It’s basically a waiting game. “Notes will be made this summer, arguments will be discussed in September, and a decision will be made in June 2020,” Nevins said. “It may happen that they stop debating, what little there is about this, and finally give us a nationwide clear victory – that would be good.”