LGBTQ Workplace Discrimination Case Comes To The Supreme Court

Oct 9, 2019

Is it legal to fire workers because they’re LGBTQ? The Supreme Court takes it up. So do we.

Guests

Amy Howe, founder and reporter, SCOTUS Blog. Served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. Taught Supreme Court litigation courses at Stanford Law School and Harvard Law School. (@AHoweBlogger)

Parker Douglas, he wrote a brief on behalf of the Christian Employers Alliance arguing employers should be able to practice their faith as business owners. Former general counsel to the Utah Attorney General. (@PDouglasLaw)

Robin Maril, associate legal director at the Human Rights Campaign, which filed an amicus brief in support of petitioners in all three Supreme Court cases. (@HRC)

From The Reading List

New York Times: “Supreme Court Hears Cases on Bias Against L.G.B.T. Workers” — “Several justices from the Supreme Court’s conservative majority directed skeptical questions at a lawyer who argued on Tuesday that the landmark civil rights law banning discrimination on the basis of sex also applies to sexual orientation.

“Justice Samuel A. Alito Jr., who expressed the most outward doubts of any of the justices, suggested that it would be absurd to conclude that when Congress passed the Civil Rights Act of 1964, it intended to protect gay, lesbian, bisexual and transgender people. ‘You’re trying to change the meaning of what Congress understood sex to mean,’ he told the lawyer, Pamela Karlan.

“‘It’s sexual orientation — it’s not sex,’ Justice Alito said at another point during the arguments, underscoring that Congress and the American public have long understood these forms of discrimination to be distinct. Discriminating against someone because they are a man or a woman, he said, is not the same as discriminating against someone for being gay or lesbian.

“The cases before the justices on Tuesday are expected to provide the first indication of how the court will approach gay rights since two appointees of President Trump, Justices Neil M. Gorsuch and Brett M. Kavanaugh, joined the bench. Many expect the court to take a less expansive view since the retirement last year of Justice Anthony M. Kennedy, its swing justice and the author of all four of the major decisions protecting gay men and lesbians, including the 2015 ruling that established a constitutional right to same-sex marriage.”

The Atlantic: “The Next Legal Battle Over LGBTQ Rights Is Here” — “A skydiving instructor in New York, a funeral-home director in Michigan, a child-welfare advocate in Georgia: Donald Zarda, Aimee Stephens, and Gerald Lynn Bostock are three people who seemingly have little in common, save for one extraordinary fact. Each claims to have been fired because they are gay or transgender, and all three will argue their cases before the U.S. Supreme Court this week.

“The Court will decide whether existing federal civil-rights law protects millions of LGBTQ people from discrimination in the workplace, potentially clearing the way for new challenges across the legal system. But more important, the Court’s ruling will be a powerful symbol of the status of LGBTQ rights in America today. Faced with the legal mess America left behind when it moved on from its gay-rights moment following the legalization of same-sex marriage in Obergefell v. Hodges in 2015, the justices will decide whether the law actually reflects a culture that is radically more accepting than it was even a few years ago.

“All three of the alleged wrongful-termination cases hinge on one word: sex. Under Title VII of the Civil Rights Act of 1964, employers cannot fire, refuse to hire, or otherwise penalize people because of their sex. (The law also protects employees from discrimination based on other characteristics, including race, color, religion, and national origin.) When the statute was originally passed more than half a century ago, ‘clearly there was no intent to cover sexual orientation or transgender [identity],’ Michael C. Harper, a law professor at Boston University, told me. At the time, sodomy was a felony offense in the majority of states. Most members of Congress had likely never heard of the concept of fluid gender identity. Even today’s broadly accepted definitions of sex and gender were different: LGBTQ advocates differentiate between people’s biological makeup, or sex, and the way they express themselves, or gender. Fifty years ago, that distinction would not have been intuitive. ‘They were trying to say that you can’t have “women’s jobs” and “men’s jobs” in a very simple way,’ Richard Epstein, a law professor at New York University, told me.”

Rolling Stone: “The Supreme Court Is About to Hear 3 LGBT Rights Cases That Are Way Bigger than Marriage Equality” — “When the Supreme Court was considering the issue of same-sex marriage in 2015, almost everyone was paying attention. Couples who had been denied the right to marry were hoping the Court would come to their rescue; liberals were dreaming of a proclamation of a new civil right; conservatives were dreading what would happen to institutions they care about. It seemed like the world was watching.

“On Tuesday, the Supreme Court is hearing arguments about another LGBT rights issue, cases with undeniably greater importance and impact, and yet, almost no one’s talking about it. Yes, we are slammed every day (every hour!) with news of President Trump and his latest scandal, so we live in a different world than we did in 2015, when non-Presidential news had an easier time breaking through. However, we should still take notice of what’s about to happen at the Supreme Court this week and whenever the Court winds up ruling on the issue.

“Here’s the basic issue: Can your boss fire you because you are gay or because you are trans? As important as the right to marry was, both in terms of people’s actual lives and symbolic acceptance of gay people, this issue is even more important. Why? For the plain reason that, compared to the small percentage of gay people who are married or want to get married, almost every LGBT person will, at some point in their lives, be employed. It’s simple numbers.”

This article was originally published on WBUR.org.

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