Fifty-five years after the passage of the Civil Rights Act of 1964 and Title VII banning employment discrimination based on race, color, religion, sex, and national origin; many lesbian, gay, bisexual, transgender, and queer Americans are discriminated against in the workplace. The lack of federal workplace protections explicitly prohibiting discrimination led states to pass their laws on LGBTQ rights. States like New York expanded the rights of LGBTQ Americans, whereas states like Mississippi and Texas restricted rights through Religious Exemptions Acts. The wide discrepancy of LGBTQ protections among the states led to three discrimination cases to go to the Supreme Court to finally rule on the interpretation of Title VII.
On October 8th, 2019, the Supreme Court heard the oral arguments of Bostock v. Clayton County, Ga., Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The advocates, David D. Cole and Pamela S. Karlan, argued that an interpretation of Title VII ban on “sex” workplace discrimination extends to all gender identities and sexual orientations. Title VII was enacted to apply to all citizens, and without question, the Supreme Court should rule in favor of the plaintiffs and protect the rights of LGBTQ Americans.
Millions of LGBTQ people in 26 states are not protected from all the various kinds of workplace discrimination, from wrongful termination and denial of promotion to refusal of training and verbal harassment. In Tennessee, for example, it is legal to fire or deny a promotion to members of the LGBTQ community—like AJ Celento. After he married his partner, Josh Corey, they moved to Tennessee to start a new life in 2017. When Celento disclosed his sexual orientation to his restaurant employer, Demos’, he was given unusual managerial tasks like grout scrubbing the bathroom floor, and suffered repeated verbal harassment for months. His employer eventually fired him before the completion of his 90-day training period. Unfortunately, half of the eight million LGBTQ Americans live in states without workplace discrimination protections. Millions like Celento face discrimination in employment, housing, public accommodations, credit, and lending.
One in five LGBTQ Americans, experience employment-related discrimination. (Harvard T.H Chan School of Public Health, 2017) Furthermore, one in three transgender respondents has been fired, denied a promotion, or experienced some other form of mistreatment related to their gender identity. (National Center for Transgender Equality, 2015) The lack of federal protections directly impacts millions of LGBTQ people. The Director of ACLU Lesbian Gay Bisexual Transgender & HIV Project, James Esseks, argues that a ruling against the workers would relegate “LGBTQ people around the country to second-class citizen status.” A ruling against the LGBTQ rights will grant employers the right to discriminate and set a new federal precedent that could allow LGBTQ Americans to be discriminated in housing, education, lending, and health care.
During the three oral arguments, the four liberal justices seemed to agree that Title VII includes sexual orientation and gender identity. However, conservative Justice Roberts focused on ruling’s impact on religious conservatives, rather than the rights and dignity of LGBTQ Americans. Above the Supreme Court entrance, it states, “EQUAL JUSTICE UNDER LAW," and this summer, Justice Roberts must re-affirm this right for all Americans. Justice Gorsuch’s questions appear to show that he sympathizes with the plaintiffs’ claims and issues LGBTQ people face. He stated, "I'm with you on the textual evidence" that, according to the text, Title VII bars employment discrimination based on sex. However, Gorsuch worried about a “massive social upheaval” if the Supreme Court ruled in favor of gay and transgender rights.
Massive social upheaval is an unsubstantiated claim to prevent the expansion of rights to minorities. It was the same argument used against the civil rights movement, the women’s movement, and the gay rights movement. There will always be pushback from people when the country expands rights to other groups. Supreme Court justices are not there to protect against “massive social upheaval” or “to protect only the rights of religious conservatives.” Even the late conservative Justice Scalia ruled that “Title VII prohibits discrimination, because of sex, and this must extend to [sex-based] discrimination of any kind that meets the statutory requirements” in the Oncale v. Sundowner Offshore Services, Inc. case. Just 30 years ago, the Supreme Court prohibited discrimination based on gender stereotyping in the Price Waterhouse v. Hopkins case.
The Supreme Court ruled twice in favor of prohibiting LGBTQ-related discrimination under Title VII. Justice Gorsuch is likely to be the deciding vote that extends Title VII. A ruling in favor would grant legal protections for the LGBTQ community. It would finally protect the LGBTQ community from discrimination in the workplace and may allow for future cases to protect against discrimination in housing, public accommodations, credit, and lending.