Is it Legal to Fire Someone for Being Gay?

As long time readers know, I was forced from a law firm years ago for being gay. It has taken years to rebuild my finances, although I will never be in a position equivalent to where I would have been but for the anti-gay discrimination I experienced first hand. Now, the U.S. Supreme Court is about to begin its term on October 8, 2019 (the first Monday in October) by hearing arguments in three cases in which the Trump/Pence Department of Justice is arguing that it is perfectly fine and legal to fire individuals for being LGBT.  The Christofascists are cheering this disturbing DOJ position that some are above non-discrimination and public accommodation laws, while decent people ought to be wondering who will be next to be targeted by Christofascists after gays. Ultimately, these religious extremists want to be able to discriminate against anyone who threatens their ignorance based Bronze Age beliefs.  Allowing discrimination based on cherry picked bible passages puts many at risk going forward, including blacks.  Countless lives would be harmed based on nothing than what boils down to ignorance and superstition. A lengthy piece in the Washington Post looks at the cases and what is at stake.  Here are highlights:

Aimee Stephens never saw how her colleagues at work would react to her gender transition. The owner of the funeral home where she worked fired her first.

Gerald Bostock claims everything was fine in his job as a social worker in Georgia until he joined a gay softball league. Then came the pink slip.

For skydiving instructor Donald Zarda, the termination came after the routine way he joked with a woman when the two had been strapped together shoulder-to-shoulder and hip-to-hip for a tandem jump. Something along the lines of, “Don’t worry, I’m gay.”

The three present the Supreme Court with a blockbuster question at the start of its new term: Is it legal to fire someone for being gay or transgender?

The cases will be argued Tuesday.

This is one of the most consequential issues of the term, with more than 70 friend-of-the-court briefs dividing states, religious orders and members of Congress. More than 200 of the nation’s largest employers are supporting the workers.

[G]ay rights leaders say “married on Sunday, fired on Monday” is a possibility in more than half of the United States, where there is no specific protection for gay or transgender workers.The states that prohibit discrimination are not uniform — some protect only gender identity or transgender status, and some differentiate between public and private employment.

The issue for the court is the reach of Title VII of the Civil Rights Act of 1964, which, besides protecting against workplace discrimination because of race, also prohibits discrimination “because of sex.”

For 50 years, courts read that to mean only that women could not be treated worse than men, and vice versa, not that discrimination on the basis of sex included LGBTQ individuals. The Trump administration says that is what the Supreme Court should find as well.

That puts the Trump administration at odds with the Equal Employment Opportunity Commission, which decided in 2015 that gay and transgender individuals were federally protected.

Treating a man who is attracted to men differently than a woman who is attracted to men is discrimination, the EEOC reasoned. . . . . Discrimination because of sexual orientation is the same thing, the EEOC said, because it relies on stereotypes about to whom men and women should be attracted.

The full U.S. Court of Appeals for the 2nd Circuit ruled for Zarda, and said its contrary past decisions on the issue were wrong.

Chief Judge Robert A. Katzmann wrote that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” (Zarda died in 2014, and his case is being advanced by his sister and partner.)

The U.S. Court of Appeals for the 6th Circuit came to a similar conclusion in Stephens’s case.

But in Bostock’s case, the U.S. Court of Appeals for the 11th Circuit went the other way, ruling for Clayton County, a suburb south of Atlanta, that Title VII did not protect on the basis of sexual orientation.

In previous rulings on gay rights, such as striking down a federal law that recognized only marriages between a man and a woman and state statutes that outlawed homosexual conduct, the Supreme Court relied on the Constitution.

These three cases concern the text of Title VII. No one argues that Congress in 1964 intended to protect LGBTQ individuals; homosexual conduct was illegal in the vast majority of the country. The solicitor general said that basic fact should decide the cases.

[T]he lawyers point to an unlikely ally: the late justice Antonin Scalia.  In a 1998 ruling in a case called Oncale v. Sundowner Offshore Services, Scalia wrote for the court that male-on-male sexual harassment was covered by Title VII even though it is not mentioned in the statute or envisioned by Congress.

“It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” Scalia wrote, adding that same-sex harassment need not be “the principal evil Congress was concerned with.”

“We’re the textualists here,” said Ria Tabacco Mar, an attorney for the ACLU, which is representing the Zarda estate. “We’re the ones pointing to the words of the statute.”

But for the demands of Christofascists and the abhorrent and deceptively named Alliance Defending Freedom, these cases would never have reached the Supreme Court.  What we see is religion - which has caused so much death, destruction and human misery over the centuries - yet again seeking to inflict harm those who do not hold to Christofascist dogma.  The Court needs to reject their demands and make it clear that real or feigned religious belief does not elevate one above the law. Civil rights outweigh ignorance based religious dogma. 

2nd Circuit: Title VII of the Civil Rights Act of 1964 Applies to Gays

As numerous posts on this blog have noted, the Trump/Pence regime has been going to great lengths to roll back LGBT rights and to undo LGBT friendly regulations from the Obama administration.  Part of this anti-gay animus motivated agenda has been to have the U.S. Justice Department under Attorney General Jeff Sessions - who has a decades long history of being an enemy of LGBT individuals - to intervene in cases in which the U.S. Government is not even a party. Today, this ploy backfired mightily when the U.S. Court of Appeals for the 2nd Circuit sitting en banc ruled that Title VII of the Civil Rights Act of 1964 applies to LGBT individuals and bars anti-LGBT discrimination.   The ruling is a major defeat for the Trump/Pence regime which only the U.S. Supreme Court, were it so inclined, could overturn.  BuzzFeed looks at this welcomed ruling and slap in the face to the always disingenuous Sessions.  Here are excerpts:

A federal appeals court on Monday ruled that a 1964 civil rights law bans anti-gay workplace discrimination. The decision rebukes the Trump administration — which had argued against a gay worker in the case — and hands progressives a win in their strategy to protect LGBT employees with a drumbeat of lawsuits.

The dispute hinges on whether Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, also bans workplace discrimination due to sexual orientation.

The Court of Appeals for the 2nd Circuit ruled Monday, “We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII.” In doing so, the court overruled a lower court — and a precedent from two previous court cases — and remanded the case to be litigated in light of their reading of Title VII.

The decision holds national implications due to its high tier in the judicial system, and because it’s seen as a litmus test of the Trump administration’s ability — or inability — to curb LGBT rights through court activism. The Justice Department had injected itself into the case even though it wasn’t a party to the lawsuit and doesn’t normally involve itself in private employment disputes.

The case was heard in New York City by all 13 judges in the 2nd Circuit, known as an en banc hearing, which leaves the Supreme Court as the only avenue for a potential appeal.

The ruling comes soon after another major gay-rights ruling in 2017, thereby giving momentum to the argument that anti-gay discrimination is prohibited even without a federal law that explicitly says so.

[T]he court pointed out that anti-gay discrimination would not exist "but for" a person's sex. That is to say, gays, lesbians, and bisexuals would not experience this type of unequal treatment had they been born a different gender, or were attracted to a different sex.

"A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women," the majority wrote in an opinion led by Judge Robert Katzmann. "We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."

Zarda’s lawyers deployed an emerging legal argument that contends Title VII applies to gay workers.

That position has been adopted by the Equal Employment Opportunity Commission, a largely autonomous federal agency that handles civil rights disputes in the workplace and supported Zarda in court.

An EEOC lawyer told the judges at a September hearing in Manhattan, “Sex stereotyping says that if you are a man attracted to a man, or a woman attracted to a woman, you’re not behaving the way those genders are supposed to behave.”

But the Justice Department took opposite stance, thereby pitting the federal government against itself.

Under Sessions, the Justice Department has tried to roll back several LGBT gains, rescinding Obama-era policy that protects transgender students and reversing a policy that said Title VII protects transgender workers. Sessions also filed a brief at the Supreme Court in favor of a Christian baker who refused a wedding cake to a gay couple, and in Zarda’s case, argued Title VII also doesn’t encompass sexual orientation.

On Monday, the 2nd Circuit found "sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected."

Gorsuch Would Likely Overrule LGBT Civil Rights Case

As noted in a prior post, the United States Court of Appeals for the Seventh Circuit in an en banc ruling held that the Civil Rights Act of 1964 barred employment discrimination against LGBT individuals.  The court read "sex" to include "sexual orientation" and non-gender conforming behavior.  The ruling conflicts with a decision handed down by the Eleventh Circuit and sets the stage for a case being appealed to the U. S. Supreme Court and makes the nomination of Judge Neil Gorsuch all the more threatening to LGBT Americans.  In his opinion in the appeals court ruling in the infamous Hobby Lobby case, Gorsuch made it clear that he believes that Christian extremist religious beliefs outweigh the rights and health concerns of others.  Moreover, like Antonin Scalia, Gorsuch claims to be a "textualist" and :originalist" which allows him(when convenient, of course) to ignore social change and modern scientific and medical knowledge.  A piece in The Daily Beast looks at how Gorsuch's nomination is a threat to LGBT rights and lives.  Here are excerpts:

This week’s appeals-court decision that sex discrimination includes sexual-orientation discrimination is a landmark case.

It also just raised the stakes of the nomination of Judge Neil Gorsuch to the Supreme Court. Because this is just the kind of case that shows how Gorsuch’s “textualism” dictates conservative social policies.

The question at the center of the case is relatively simple. Kim Hively was fired from her job at a community college when someone saw her kissing another woman, and reported it. If that was really the reason she was fired, was it against the law?

Survey after survey has revealed that most Americans think it is. But most Americans are wrong. The Civil Rights Act of 1964 covers racial and sex discrimination, but it’s never been expanded—despite many attempts—to include sexual orientation or gender identity. The laws in 29 states are similar [including Virginia].
 Hively’s lawyers at Lambda Legal, the leading LGBT-focused activist law firm, argued that if you think about it, she was discriminated on the basis of sex. If a man were seen kissing a woman, he wouldn’t be fired. But because she’s a woman seen kissing a woman, she was. 

That position has been rejected by two other appeals courts, but this week, by an 8-3 vote, the Seventh Circuit Court of Appeals agreed with it, writing “Hively represents the ultimate case of failure to conform to the female stereotype.”

Because of the circuit split, the Hively case, or one just like it, is almost certain to go to the Supreme Court—where, if all goes according to prediction, it will encounter Justice Neil Gorsuch and his philosophy that a judge’s job is to say “what the words on the page mean.”
 That phrase sounds innocent enough, and Gorsuch repeated it over and over again during his confirmation hearing. But the Hively case shows why it’s a con.  Is “sexual orientation” among the “words on the page” of the Civil Rights Act? No. Was Hively fired for being female? No. Therefore, according to the “textualists,” she loses.

Now let’s come back to Hively. We know that the “words on the page” are ambiguous; that’s why there’s a lawsuit. So how do we understand discrimination on the basis of sex? Hively was doing something that, if she were a man, would have been totally unobjectionable. But because she’s a woman, she gets fired. Isn’t that sex discrimination?

Moreover, Hively’s claim is based on actions, not identity. She’s not claiming that her sexual orientation got her fired; she’s claiming that certain acts in which she engaged did. That’s actually a crucial difference. Hively isn’t making her case as a lesbian; she’s making her case as a woman who did something that her boss thinks a woman shouldn’t do.

[R]easonable people can disagree about how to interpret the Civil Rights Act in this kind of case. But one thing is for sure: The “words on the page” are the beginning, not the end, of the inquiry. If the words on the page were so clear, there’d be no need for judges.

Hively being decided just as Gorsuch’s nomination is being debated highlights what’s at stake for the Supreme Court, and why the non-confirmation of Judge Merrick Garland is not water under the bridge. If Gorsuch is confirmed, the case will, like so many others, come down to Justice Kennedy deciding whether to side with the court’s four liberals or the court’s four conservatives.

And if the next justice to retire is one of those liberals, or Kennedy himself, cases like Hively are open and shut. That’s why, absent some kind of last-minute compromise, Democrats are going to the mat to block Gorsuch, no matter how nice of a guy he is.

To laypeople watching the hearings, Gorsuch’s aw-shucks manner and plain-spoken appeals to the “words on the page” seem like good old common sense. But they aren’t that at all—they’re an ideology that leads to very specific, very conservative results.  And women like Kim Hively pay the price.

I take employment discrimination very personally.   When I first came out as gay after being married to a woman and having three children, I was with a relatively prominent Norfolk law firm and making good money.  While some of my partners were not thrilled with having a gay partner, nothing adverse happened to me.  Later, that firm was basically acquired by a larger law firm based in the area and the powers that be at that firm did not want to have a gay partner in the firm out of deference for "the sensibilities of the firm's conservative clients."   Naturally, when I was forced from the firm, things were worded differently, but when confronted by the attorney I had hired, the true cause was never denied.  At the time this happened, I still had a child in college and a child still in high school and a family to support.  Of course, no consideration was given to them or me the anti-gay bigots involved.  All that mattered were the purported religious beliefs of unnamed clients.  What was the impact on me?  Financially, it devastating and ultimately I was forced to file Chapter 7 bankruptcy.  At that time period in Hampton Roads, there were no "out" partners in any larger law firm - there still aren't any to my knowledge - and I was basically unemployable.   Emotionally, things were just as brutal for me and my children.  In fact, I engaged in two serious suicide attempts during the ongoing nightmare.  

Judge Gorsuch can play his word games and textualism all he wants, but the bottom line is that he is a threat to real people and real families and real lives.  

7th Circuit: 1964 Civil Rights Law Prohibits Anti-LGBT Discrimination

In the face of a growing Trump/Pence/GOP onslaught against LGBT Americans, the full Court of Appeals for the Seventh Circuit, a fairly conservative court, handed down a ruling that the 1964 Civil Rights Act bars anti-LGBT discrimination. The ruling is the direct opposite from that reached by a three judge panel of the 11th Circuit based in Atlanta.  The conflicting rulings set the stage for a possible case reaching the U.S. Supreme Court to resolve the split in the Circuits.  Arguably, an en banc ruling such as that of the 7th Circuit holds more precedent but is not binding outside of the states located within the 7th Circuit.  A piece in Star Tribune looks at the ruling that could rile the waters for anti-LGBT Republicans and their Christofascist puppeteers (more coverage is in the Indianapolis Star here).  Here are excerpts:

A federal appeals court ruled for the first time Tuesday that the 1964 Civil Rights Act protects LGBT employees from workplace discrimination, setting up a likely battle before the Supreme Court as gay rights advocates push to broaden the scope of the 53-year-old law.

The decision by the full 7th U.S. Circuit Court of Appeals in Chicago comes just three weeks after a three-judge panel in Atlanta ruled the opposite, saying employers aren't prohibited from discriminating against employees based on sexual orientation.

The case stems from a lawsuit by Indiana teacher Kimberly Hively alleging that the Ivy Tech Community College in South Bend didn't hire her full time because she is a lesbian.
Hively said she agreed to bring the case because she felt she was being "bullied."

She told The Associated Press in a telephone interview that the time has come "to stop punishing people for being gay, being lesbian, being transgender."

The Chicago ruling followed a so-called en banc hearing of all the judges in the appeals court, with eight agreeing that the civil rights law prohibits discrimination because of sexual orientation, and three dissenting. The vote is notable because the 7th Circuit is considered a relatively conservative appeals court. Eight out of the 11 judges were appointed by Republican presidents.

The issue could still land before the Supreme Court at some point. A GOP-majority House and Senate make it unlikely the Congress will amend the Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin and requires equal access to public places and employment.

The debate in the Hively case revolved around the meaning of the word 'sex' in Title VII of the Civil Rights Act. Some courts have concluded that Congress meant for the word to refer only to whether a worker was male or female. They said that it would be wrong to stretch the meaning of 'sex' in the statute to also include sexual orientation.

The lawyer representing the teacher, Gregory Nevins of the Lambda Legal advocacy group of LGBT rights, pointed to what he described as the absurdity of a 1980s Supreme Court finding that if workers are discriminated against because they don't behave around the office by norms of how men or women should behave, then that does violate the Civil Rights Law. But if a man or woman is discriminated against at work for being gay that was found not to violate the Civil Rights Act.

"You can't discriminate against a woman because she rides a Harley, had Bears tickets or has tattoos," he said. "But you can if she's lesbian."