The Supreme Court Hears Pivotal Cases on LGBTQ Rights in the Workplace
On Oct. 8, the Supreme Court heard two cases that may shape the future of LGBTQ workers throughout the United States.
The central question: does Title VII of the Civil Rights Act of 1964 protect gay and transgender workers from being fired due to their sexual orientation or gender identity?
Title VII is the part of the Civil Rights Act of 1964 that outlines the protections workers have from being fired due to their race, religion, national origin and sex.
Two separate cases were heard together as one in Bostok v. Clayton County. The third case was heard in Harris Funeral Homes v. EEOC. In Bostok, two men, Donald Zarda and Gerald Bostok, contend they were fired by their employers due to being gay.
“What’s bizarre about this is that in the state of Georgia, I can legally get married to my partner on Saturday or Sunday and get fired for it on Monday because I don’t have those federal protections,” Bostock told NBC News in October. “We as a LGBTQ community don’t have those federal protections.”
Zarda, who passed away in 2014 in a BASE-jumping accident, was working as a skydiving instructor in Long Island, New York. Bostok was working as a child-welfare-services coordinator in Clayton County, Georgia.
In Harris Funeral Homes v. EEOC, a transgender woman named Aimee Stephens was fired by the Michigan funeral home after she decided to dress and live as a woman. Thomas Rost, the funeral home’s owner, fired Stephens because it violated “God’s commands.”
Stephens argues that had she been assigned female at birth, she would not have been fired for dressing and living as a woman. Zarda and Bostok contend that if they had been women, they would not have been fired for being sexually attracted to men.
However, the employers claim they fired their employees due to their sexual orientation and sexual identity, not solely because of their sex–something that Title VII does not explicitly protect against.
The disagreement over whether Title VII does in fact extend to the LGBTQ community stems in part from the time in which it was written.
At the time of Title VII’s writing in 1964, homosexuality was classified as a mental illness by the American Psyhiatric Association. It could be argued that at the time, Congress never intended for the LGBTQ community to be protected or have forseen this becoming an issue.
If the Court were to rule in favor of the employers, it could allow for businesses to fire their employees based on their sexual orientation or gender identity without threat of being sued.
“If it is 5-4 and it [employers] win, I think the LGBTQ community and specifically the trans community is in trouble,” said Heather Johnson, director of the Center for Gender and Sexuality at UM-Flint.
The social impact of favoring the employers in this case could potentially be more far-reaching than the direct impacts of the ruling.
“I think it contributes to marginalizing and I would say disrespecting the equality and basic rights of LGBTQ people because it’s yet another official declaration that such people are not deserving of non-discrimination,” said Peggy Kahn, a professor of political science at UM-Flint.
Johnson echoes Kahn’s sentiments. “In effect, we’re going to be saying ‘you don’t have a right to work.’ If you don’t have the right to work, what is the point? What is your purpose?”
However, if the Court were to favor the employees, it would double-down on the Equal Employment Opportunity Commission’s (EEOC) understanding of Title VII’s “because of sex” provision: gay and transgender people are as equally protected as everyone else. The EEOC is the federal commission dedicated to enforcing federal employment laws in the United States.
If the employees were to win and depending on the wording of the Supreme Court’s opinion, every state would have to pass laws that would comply with the ruling. However, if ruled in favor of the employers, individual states would have to pass their own anti-discrimination laws.
Currently, 28 states have no laws protecting against LGBTQ discrimination for employees, including Michigan.
“It leaves a lot of gaps in terms of federal civil rights protections,” said Kimberly Saks-McManaway, a professor in the political science department at UM-Flint and a Constitutional law expert. “But there is a way.”
That way would be if Congress would pass a law extending protections beyond those in Title VII to cover sexual orientation and gender identity.
But Saks-McManaway has her doubts. “Congress has been more dysfunctional lately than usual and we’ll see if that happens here based on the ruling.”
The Supreme Court will deliver their decision whenever they want, but it typically takes them months or even years to do so. They are expected to give their ruling for these cases at the beginning of next year.