By: Ryan Rizzo
On October 8, the United States Supreme Court heard two cases together in relation to LGBTQ claims of employment discrimination.[1]Following the success of marriage equality campaigns on a state and judicial level, advocates and interest groups have turned their attention to the next frontier: employment discrimination. While some states have codified protections, efforts at the federal level have been stymied. H.R. 5 Equality Act of 2019 is the current federal legislation that would amend the Civil Rights Act to prohibit discrimination on the basis of sexual orientation and gender identity. The bill was passed by the House of Representatives in May, but has been stalled in the Republican controlled Senate, which has refused to allow it to come to a vote.[2]
The two cases in question are Bostock v. Clayton Countyand Altitude Express v.Zarda, the latter of which was consolidated into Bostock’soral argument. Bostock arose out of a Title VII claim under the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.[3] The petitioner, Gerald Bostock, was a child welfare coordinator and was fired from his job in 2013. Preceding this were a series of comments and encounters that the petitioner had to endure that were disparaging towards his sexual orientation and identity.[4]The petitioner would go on to file suit with the Equal Employment Opportunity Commission (EEOC) before suing the county.[5]
Since the claim was brought under the Civil Rights Act, it will be interpreted through a statutory lens, not a constitutional one like marriage equality was. The argument is seen as an uphill battle with a conservative majority in control the Court. The Court has never extended the classification of suspect class to members of the LGBTQ community, and, to many observers, seems unlikely to extend further protections on a statutory level. The attorney for the petitioner, Pamela S. Karlan, argued that sexual orientation falls within the meaning of “sex” as members of the LGBTQ community are discriminated against as they do not conform to a societal norm of men acting masculine or women acting feminine enough.[6]Many proponents for the expansion of discrimination protection are looking to Justice Neil Gorsuch as the swing vote, highlighting his attentive attitude during oral arguments, though were discouraged by his comments about the possible “ massive social upheaval” from the perceived change in the definition of sex.[7]
Currently twenty-one states, the District of Columbia, Guam, and Puerto Rico have statutes that protect against sexual orientation and gender identity discrimination in the public and private spheres.[8]If the Supreme Court was to expand the definition of “sex” to include sexual orientation, it would guarantee protection to millions of Americans. It would also, however, set the Court up for a new battle with religious freedom claims. With the lack of clear precedent established from Masterpiece Cake Shop v. Colorado Civil Rights Commission, the codification of employment protection for sexual orientation and gender identity would clear up confusion and be a step forward for LGBTQ community members while Congress and state legislatures remain stalled. All that remains now is to wait and see how the Court will rule.
[1]Amy Howe, Argument Analysis: Justices Divided on Federal Protections for LGBT employees, (Oct. 8, 2019, 2:14 PM), https://www.scotusblog.com/2019/10/argument-analysis-justices-divided-on-federal-protections-for-lgbt-employees/
[2]H.R. 5, 116thCongress (1st Sess. 2019).
[3]42 U.S.C. §2000e
[4]Zora Franicevic, Soo Min Ko, Bostock v. Clayton County, Georgia Bulletin, Legal Information Institution, https://www.law.cornell.edu/supct/cert/17-1618
[5]Id.
[6]Howe, supranote 1.
[7]Are we textualist now? Amy Howe and Kevin Russell Discuss Oral Arguments in LGBT employment discrimination cases, (Oct. 17, 2019, 9:08 AM), https://www.scotusblog.com/2019/10/are-we-all-textualists-now-lgbt-cases/
[8]Non-Discrimination Laws – Employment, Equality Maps, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/non_discrimination_laws
