June 15, 2020 at 10:14 am EDT | by Chris Johnson
HISTORIC: Supreme Court rules firing workers for being LGBTQ is illegal
anti-discrimination laws, gay news, Washington Blade
The U.S. Supreme Court has ruled firing workers for LGBTQ is illegal. (Washington Blade file photo by Michael Key)

In a historic development, the U.S. Supreme Court ruled on Monday that existing federal law bars discrimination against workers for being LGBTQ, affirming long-sought federal protections for LGBTQ people in the workplace.

The 6-3 decision, written by U.S. Associate Justice Neil Gorsuch, determines anti-LGBTQ discrimination is a form of sex discrimination, thus prohibited under Title VII of the Civil Rights Act of 1964.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch writes. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Joining Gorsuch in the majority was U.S Chief Justice John Roberts as well as U.S. Associate Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer.

Dissenting were U.S. Associate Justices Brett Kavanaugh, Samuel Alito and Clarence Thomas.

The ruling doesn’t merely uphold the status quo, despite the widespread misconception anti-LGBTQ discrimination is already illegal. For the 29 states that lack state laws banning anti-LGBTQ discrimination in the workforce, the ruling affirms discrimination based on sexual orientation and gender identity in the workplace is now illegal in those places and nationwide.

The decision was issued in three consolidated cases, Bostock v. Clayton County and Zarda v. Altitude Express, which sought to clarify whether anti-gay discrimination is a form of sex discrimination, and Harris Funeral Homes v. EEOC, which sought to clarify whether anti-trans discrimination was sex discrimination.

The transgender worker in the Harris case, Aimee Stephens, a funeral home director, passed away last month before she could learn of the decision to come from the Supreme Court. The gay worker in the Zarda case, Donald Zarda, a skydiver, had passed away before his case reached the Supreme Court. The gay worker in the Bostock case, Gerald Bostock, is still living.

In each of these cases, LGBTQ workers argued they were unlawfully fired because of their sexual orientation, but the employers argued that was perfectly legal because no federal law explicitly bans anti-LGBTQ discrimination.

Although employers argued before the Supreme Court Congress didn’t intend to include LGBTQ people when it enacted the Civil Rights Act of 1964, Gorsuch throws cold water on that argument.

“The employers assert ‘no one’ in 1964 or for some time after would have anticipated today’s result,” Gorsuch writes. “But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.”

Gorsuch cites several cases establishing precedent on the scope of Title VII to reach the conclusion it bars anti-LGBTQ discrimination. Among them is the 1998 decision in Oncale v. Sundowner Offshore Services, Inc. — a decision written by the late U.S. Associate Justice Antonia Scalia that determined sexual harassment from same-sex workers amounts to sex discrimination under the law.

Kavanaugh, who elected to write his own dissent, said justices are overriding the scope of Title VII by interpreting it to prohibit anti-LGBTQ discrimination.

“In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views,” Kavanaugh writes. “Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.”

Alito, in a dissent joined by Thomas, takes to Webster’s Dictionary to dispute the meaning of “sex” includes LGBTQ people, then forecast dire consequences for the Supreme Court reading too much into Title VII.

“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” Alito writes. “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”

LGBTQ rights advocates, many of whom had been fighting for decades to win LGBTQ non-discrimination protections at the federal level, hailed the Supreme Court ruling as a historic milestone.

Tico Almeida, an attorney at WilmerHale who represented more than 200 businesses – including Apple, Facebook, Google, Univision, and Warner Media – in an amicus brief supporting the LGBTQ workers, said the decision “affirms the legal protections that give LGBTQ Americans the freedom to work without discrimination.”

“The major businesses that signed our pro-LGBTQ amicus brief to the Supreme Court employ millions of workers, comprise over $5 trillion in revenue, and share a common interest in equality because they know that ending discrimination in the workplace is good for the U.S. economy as a whole,” Almeida said.

In terms of federal law, the decision dramatically expands civil rights protections by assuring Title VII prohibits discrimination against LGBTQ people.

Only two federal judicial circuits — the Second and the Seventh — had previously determined anti-gay discrimination is sex discrimination. The idea anti-trans discrimination is a form of sex discrimination is more established in the U.S. jurisprudence, but the Supreme Court ruling now guarantees those protections nationwide.

Shannon Minter, a transgender civil rights attorney and legal director for the National Center for Lesbian Rights, said the ruling comes at an appropriate time for the nation.

“This is a huge victory not just for LGBTQ people, but for our country, which benefits enormously when LGBTQ people are permitted to participate and contribute on equal terms,” Minter said. “Today’s decision will be remembered as a watershed in the history of LGBTQ rights, even as our country continues to grapple with the brutal legacy of racism.”

The Trump administration, through U.S. Solicitor General Noel Francisco, argued before justices firing workers for being LGBTQ is permitted under Title VII.

It remains be to seen how the Trump administration will implement the decision now that the court has ruled the other way. The White House and Justice Department didn’t immediately respond to the Washington Blade’s request for comment.

The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal workplace laws, had been accepting charges from LGBTQ people alleging discrimination in the workforce under Title VII.

Although that practice during the Trump administration was in question before the Supreme Court decision, accepting and pursuing those LGBTQ charges will likely continue uncontested in the aftermath of the ruling.

Kimberly Smith-Brown, a spokesperson for the EEOC, said the Supreme Court decision is important, but the agency is still reviewing its scope.

“The Supreme Court decision today provides important clarity for both workers and employers about their rights and responsibilities in the workplace,” Smith-Brown said. “We are reviewing the decision to determine how it will impact EEOC’s enforcement of Title VII.”

In theory, the ruling should apply to laws other than Title VII banning discrimination on the basis of sex in the workforce, including the Fair Housing Act, the Affordable Care Act and Title IX of the Education Amendments of 1964. That would mean LGBTQ people now have federal protections not only in employment, but also in housing, health care and school systems.

Because no federal law prohibits discrimination on the basis of sex in public accommodations or federal programs, the ruling does nothing for LGBTQ protections in those areas. As an example, Colorado baker Jack Phillips of Masterpiece Cakeshop, who refused to make a custom-made wedding cake for a same-sex couple and narrowly won a previous case before the Supreme Court, would still be able refuse to service to LGBTQ people under this latest ruling.

No federal law also prohibits discrimination on the basis of sex in the U.S. military, so President Trump’s ban on transgender military service will remain in effect.

For most cases, the ruling should put to rest fears that led to the adage of LGBTQ people being married on one day and fired the next, but a series of other cases accepted by the Supreme Court may soon undermine the Title VII decision if the rulings come out against LGBTQ people.

Last month, the court heard arguments in the cases of Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel. In those cases, Catholic schools are seeking a wider religious exemption under federal law to discriminate in hiring. If the court rules in favor of the schools, it would allow them to refuse to hire or fire LGBTQ teachers over religious objections.

The Supreme Court has also agreed to take up the case of Fulton v. Philadelphia in which Catholic adoption agencies are seeking a First Amendment right to refuse child placement into LGBTQ homes. A ruling in favor of Catholic Social Services could undercut the Supreme Court’s ruling the Title VII cases.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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