Supreme Court to Take Up Cases on LGBT Workplace Rights

Currently there are no express federal non-discrimination protections for LGBT employees in the workplace.  Similarly, over two dozen states - including Virginia - have no state law employment non-discrimination protections for LGBT citizens.  Given this void, some federal agencies and two of the U,S. Circuit Courts of Appeal have held that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans sexual orientation discrimination.  Yet another court held that the Act did not afford such expansive protections.  Now, the U.S. Supreme Court -stacked with Trump appointed anti-gay justices - will take up the question.  It is an issue that I am passionate about given my own experience more than a decade ago of being forced from a Virginia Beach law firm for being gay. That event, combined with an anti-gay divorce court judge forced me into bankruptcy. After being force to maintaining my own firm for eight years due to the homophobia in the local legal community, for the last five years I have been with gay accepting firms and have largely recovered financially.  I know first hand what religious based bigotry and hatred can do to harm lives.  A piece in  Politico looks at the appeals:

The Supreme Court has agreed to take up a set of high-profile cases involving gay rights and the rights of transgender people in the workplace.

The justices announced Monday that they will consider whether existing federal law banning employment-related sex discrimination also prohibits discriminating against individuals on the basis of sexual orientation or because they are transgender.

The Supreme Court said it will hear a pair of cases in which federal appeals courts split over whether LBGTQ employees are protected by the Civil Rights Act of 1964.

The justices also accepted a case involving a transgender funeral home employee, saying they will consider whether being transgender is protected in itself or whether it falls within existing law against “sex stereotyping.”

The cases are expected to be argued in the fall.

A piece in The Advocate gives more details on the posture of the three cases to be heard by the U.S. Supreme Court and the impact the ultimate decision will have on millions of LGBT Americans:

The Supreme Court has agreed to take up a set of high-profile cases involving gay rights and the rights of transgender people in the workplace.

The justices announced Monday that they will consider whether existing federal law banning employment-related sex discrimination also prohibits discriminating against individuals on the basis of sexual orientation or because they are transgender.

The Supreme Court said it will hear a pair of cases in which federal appeals courts split over whether LBGTQ employees are protected by the Civil Rights Act of 1964.

The justices also accepted a case involving a transgender funeral home employee, saying they will consider whether being transgender is protected in itself or whether it falls within existing law against “sex stereotyping.”

The cases are expected to be argued in the fall.

One involves Donald Zarda, a skydiving instructor who was fired from his job in 2010 after telling a client he was gay. His employer, New York-based Altitude Express, contended he was fired for touching the client inappropriately. The U.S. Court of Appeals for the Second Circuit, while not ruling on the merits of the case, did rule last year that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans sexual orientation discrimination. Altitude Express appealed to the Supreme Court, saying that the scope of the law should be decided by legislators, not the courts.

In the other sexual orientation case, Gerald Bostick, a social worker employed by Clayton County, Ga., said he was fired for being gay. County officials said his firing was for other reasons. In his case, the Eleventh Circuit Court of Appeals said Title VII did not apply because it did not explicitly address sexual orientation. The Supreme Court often agrees to hear cases where there is disagreement between circuits, known as a "circuit split."

In the gender identity case, funeral director Aimee Stephens was fired from a Michigan funeral home company in 2013 after she began presenting as a woman at work. The company, R.G. & G.R. Harris Funeral Homes, said she violated its dress code by wearing women’s clothing; her boss, Thomas Rost, also said she violated his religious beliefs about gender being God-given and immutable. The Seventh Circuit Court of Appeals ruled that companies cannot arbitrarily fire trans people and that discrimination based on gender identity is inseparable from discrimination based on sex. The funeral home operator, represented by the anti-LGBTQ Alliance Defending Freedom, appealed to the Supreme Court, objecting to that expansive interpretation of sex discrimination law.

In hearing these cases, the high court, which now has a conservative majority, could have a huge effect on LGBTQ rights. Civil rights groups said the matter underscores the need for the Equality Act, recently introduced in Congress, which would amend existing law to explicitly ban discrimination based on sexual orientation and gender identity, in employment and other facets of life.

Greg Nevins, senior counsel and workplace fairness program strategist for Lambda Legal, noted, “Title VII obviously requires equal treatment of men and women, so it was wrong to treat Donald Zarda (or Gerald Bostock) differently because of his attraction to men, when a Donna Zarda or Geraldine Bostock would not have endured discrimination for liking men. And when Aimee Stephens’ employer fired her after learning that she was undertaking a gender transition, her employer discriminated against her because of sex. These arguments couldn’t be more straightforward, and we are hopeful that the court will confirm that they are correct.”