Promising Developments for LGBTQ Workers

After four years under a President who did everything in his power to strip LGBTQ people of their rights, things are finally looking up for LGBTQ workers. On his first day in office, President Biden issued an Executive Order instructing his administration to vigorously enforce the federal anti-discrimination laws which prohibit discrimination on the basis of sexual orientation and gender identity. And this week, the House of Representatives voted to pass the Equality Act, which would amend the Civil Rights Act of 1964 to explicitly encompass protections for gay, lesbian, bisexual, transgender, and queer people.

 

Biden’s Executive Order requires federal agencies to follow the landmark Supreme Court decision in Bostock v. Clayton County, which Bryan Schwartz Law has written about before. The Court in Bostock interpreted Title VII’s prohibition on discrimination “because of sex” to encompass discrimination based on sexual orientation and gender identity. It held, “An employer who fires an individual merely for being gay or transgender violates Title VII.” Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1734 (2020). The Court reasoned that it is impossible for an employer to discriminate against employees based on sexual orientation without discriminating against them on the basis of sex. Id. at 1741. Justice Gorsuch provided the example of a man being fired because he was married to a man, whereas a woman would not have been fired for being married to a man. Id. Therefore, because men and women are treated differently, there exists sex discrimination in this scenario. Id.

 

At the end of his presidency, in January, Trump’s Justice Department issued a last-minute memo seeking to limit the scope of Bostock’s applicability. Thankfully, Biden both revoked the memo and explicitly instructed his administration to interpret Bostock broadly in his Executive Order. In adopting a broad construction of Bostock, the Executive Order says loudly that the Biden administration will consider discrimination on the basis sexual orientation and gender identity to be a form of sex discrimination, prohibited by Title VII. This is an encouraging development, but because it is an Executive Order rather than legislation, it leaves open the possibility that future presidents could take steps backward again, like Trump did.

 

This is where the Equality Act comes in. Instead of including protections for LGBTQ people under the umbrella of “sex discrimination,” the Equality Act would Amend the Civil Rights Act of 1964 to add “sexual orientation and gender identity” as their own bases for protection under the Act. Currently, these bases are race, color, religion, sex, and national origin. The Equality Act would replace the word, “sex,” from the Act with, “sex (including sexual orientation and gender identity).” The Civil Rights Act of 1964 is one of the greatest sources of protection for American workers, with Title VII of the Act prohibiting employment discrimination nationwide. The Equality Act would therefore expand these meaningful protections for American workers to explicitly encompass members of the LGBTQ community. 

 

It is important to pass federal protections for LGBTQ workers because currently, 27 states have no state-level laws prohibiting discrimination based on sexual orientation or gender identity.  Further, passing the Equality Act would ensure federal-level protection from discrimination even in the unfortunate case that we end up with another President who does not support LGBTQ workers. It is crucial that we do not leave this important civil rights issue up to the whims of a bigoted future President.

 

Thanks to decades of hard work by LGBTQ advocacy groups, the House of Representatives voted to pass the Equality Act on February 24, 2021. Hopefully the Senate will look past partisan divides and vote this Act into law swiftly.

 

Bryan Schwartz Law stands with LGBTQ workers. The firm has written about Title VII many times before. If you believe you have been discriminated against based on your sexual orientation or gender identity, please contact Bryan Schwartz Law.

Victory! U.S. Supreme Court Rules that Employers Cannot Discriminate Against Their Employees for Being LGBT

Today, the Supreme Court ruled that Title VII protections apply to lesbian, gay, bisexual, and transgender workers. Title VII was created in 1964 and prohibits employment discrimination based on race, color, religion, sex, and national origin. After hearing oral arguments for three cases last October, the Court ruled in a 6-3 decision that prohibited discrimination “because of sex” under Title VII also extends to LGBT workers.  This landmark ruling is a huge victory for employees and the LGBT movement. 

Before Monday’s ruling, employees in more than half the states could be fired for being LGBT. The three cases discussed before the Supreme Court involved two gay men and one transgender woman, all of whom were terminated immediately after their employer discovered they were LGBT. Gerald Bostock was an award-winning child welfare advocate in Georgia but was fired after his employer found out he participated in a gay recreational softball league. Donald Zarda, a skydiving instructor in New York, was fired days after mentioning he was gay to a client. Aimee Stephens, a transgender woman working at Harris Funeral Homes in Michigan, was fired after announcing she planned to “live and work full-time as a woman.” 

The Court’s decision was surprising to most, as Justice Gorsuch, appointed by President Trump, wrote for the Court. Justice Gorsuch was joined by Republican-appointee Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The majority found that Title VII’s “because of sex” was originally enacted with protections for LGBT employees in mind. Further, even if an employer’s ultimate goal is to discriminate against its employees on the basis of sexual orientation, the employer intentionally treats an employee worse based on that individual’s sex along the way. For example, if two identical employees are attracted to men, and the employer fires the male employee for no other reason other than the fact he is attracted to men, the employer discriminates against him for traits it tolerates in its female employee. The Court found that this is simply discrimination based on sex, with Justice Gorsuch stating that this analysis “involve(s) no more than the straight-forward application of legal terms with plain and settled meanings.” 

Justice Gorsuch’s decision was surprising because of who appointed him—but, to the vast majority of Americans identifying with both political parties, it is clear that LGBT people in the workplace should not suffer discrimination because of their sexual orientation, i.e., because of sex. In fact, according to The New York Times, 90% of Democrats and 74% of Republicans believe it should be illegal for employees to be fired based on sexual orientation. Similarly, 86% of Democrats and 69% of Republicans believe it should be illegal for employees to be fired for being transgender.

Justice Samuel Alito and Clarence Thomas joined in a dissent out of touch with what the American public has long believed, arguing that the Court was wrongly stepping into the shoes of legislators. Justice Alito stated that if Congress wanted Title VII to include protections for the LGBT population, it would have amended the statute to explicitly include “sexual orientation” or “gender identity.” Meanwhile, in a separate dissent, Justice Kavanaugh focused primarily on statutory interpretation and argued that the majority failed to analyze appropriately the “ordinary meaning” of Title VII. 

The Court’s decision resolved a split among federal circuit courts, with the Eleventh Circuit previously holding that sexual-orientation-based claims were not actionable under Title VII but the Second, Sixth, and Seventh Circuit reaching the contrary decision. In Bostock’s case, the Eleventh Circuit upheld the district court’s dismissal of Bostock’s complaint due to a previous panel holding that found Title VII did not apply to sexual orientation claims, holding that “under [the] prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong.” The prior panel had explained, “[d]ischarge for homosexuality is not prohibited by Title VII,” highlighting that no Supreme Court decision had ever “squarely address[ed] whether sexual orientation discrimination is prohibited by Title VII.” Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1255-56 (11th Cir. 2017) (citing Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)). Similarly, the district court in Stephen’s case stated that “neither transgender status nor gender identity are protected classes under Title VII.” E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, 201 F. Supp. 3d 837, 861 (E.D. Mich. 2016). In his dissent in Zarda v. Altitude Express, Inc., the Second Circuit case finding that sexual-orientation-based claims were actionable under Title VII, Judge Gerard E. Lynch stated, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII[, but when] I actually woke up[, I] realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.” 883 F.3d 100, 137 (2d Cir. 2018). With the Supreme Court’s decision today, we can wake up knowing that we all have the right to be protected against employment discrimination under Title VII.

In his opinion, Justice Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” We agree. To the tireless activists—including Mr. Zarda and Ms. Stephens, both of whom passed away before this decision could be published—and decades of LGBT activism that led to this momentous decision today, we thank you and look forward to ensuring employers adhere to this ruling in the years to come.

Bryan Schwartz Law celebrates today’s important decision. The firm has written about Title VII many times before. If you believe you were discriminated against on the basis of sex, please contact Bryan Schwartz Law today.

Can You Be Fired For Being Gay? The Supreme Court Will Soon Decide.

Next month, the Supreme Court will hear three cases about workplace discrimination. Under Title VII of the 1964 federal Civil Rights Act, it's illegal for an employer to discriminate against an employee on the basis of sex. What "sex" encompasses is what's at issue in these cases. Up until now, federal law has treated "sex" to include gender only, meaning an employer can't discriminate against you just because you're a man or a woman. The question at issue in these cases is whether the word "sex" also encompasses sexual orientation and gender identity. If you identify as LGBTQ+, are you protected from discrimination in the workplace? That's what SCOTUS will soon decide.

In one case, a transgender woman was fired from her job after revealing that she was transgender and would be dressing in accordance with the female dress code for the office. In the other two cases, gay men were fired because of their sexual orientation. 28 states currently have no protections for LGBTQ+ employees in the workplace (although a few of those states protect public sector workers). The Obama Administration had interpreted federal non-discrimination statutes to include discrimination on the basis of sexual orientation and gender identity, but the Trump Administration reversed course, and is essentially saying an employer may fire someone for being gay or transgender, without consequences under Title VII. That shouldn't be surprising coming from an Administration that implemented a transgender military ban (which Bryan Schwartz Law has written about before); denies citizenship for the foreign-born, adopted children of gay couples; and nominates judges to the federal bench who are openly hostile to LGBTQ+ people. The Democrat-controlled House passed the Equality Act earlier this year, which would enshrine LGBTQ+ workplace protections into federal law, but the Republican-controlled Senate has not advanced the Act, making the Supreme Court's upcoming hearing especially important.

In this climate, and given the current composition of the Supreme Court, LGBTQ+ advocates and allies are understandably worried. Some are hopeful that since these cases don't involve interpreting the Constitution (as was required in the same-sex marriage case of Obergefell), but rather a statutory interpretation of Title VII, some of the conservative justices who voted no in Obergefell might vote yes in these cases. Advocates also hope that Chief Justice Roberts will remember what he famously said in 2015 when the Court heard arguments about same-sex marriage: “I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” Excellent question, Chief Justice. We look forward to your answer - which could come anytime between next month and next summer.

If you've been discriminated against in the workplace because of your sexual orientation or gender identity, contact Bryan Schwartz Law today.

Preliminary Injunction Against Trump’s Transgender Service Ban Shows How Federal Courts Are Our Last Line of Defense Against Discriminatory Executive Orders

The first 10 months of the Donald Trump Administration have been a sort of stress test for the resilience of the American constitutional system and the institutions charged with upholding it. We have seen an acting Attorney General resign rather than implement a plainly unconstitutional “Muslim ban,” and top Pentagon officials walk back Trump’s most belligerent threats of a nuclear attack against North Korea. But no institution has served a greater role in curbing the worst impulses of the Trump presidency than the federal courts, which have been repeatedly confronted with the Trump Administration’s cynical and authoritarian efforts to violate our core liberties and constitutional values: equal protection under the law, freedom of speech, and freedom of religion, to name a few.

In the most recent example, the U.S. District Court for the District of Columbia last week granted a preliminary injunction against the enforcement of President Trump’s Memorandum, which sought to ban all transgender individuals from serving in the U.S. military, effective March 2018. Under the Obama Administration, the Department of Defense went through a lengthy deliberation process and announced in June 2016 that transgender Americans could serve openly in the U.S. military, and that transgender recruits would no longer be turned away. The effect of the District Court’s Order is to preserve that status quo, such that current transgender troops will not be discharged in March and transgender recruits may join the military as soon as January.

In a detailed opinion, the Court determined that the Plaintiffs – current and aspiring transgender service members – were likely to succeed on their Fifth Amendment equal protection claims. The Court first determined that the Memorandum’s effect of disfavoring a class of historically persecuted individuals warranted heightened scrutiny. Then the Court concluded that the government could not meet such a standard, noting the unusual circumstances surrounding the announcement of the ban (i.e., it was announced via a series of Presidential tweets), the lack of factual support for the reasons proffered in favor of the ban, and the fact that the military itself had recently rejected those same reasons. The guiding principle in rejecting the ban is that “the Constitution’s guarantee of equality must at the very least mean that a bare desire to harm a politically unpopular group cannot justify disparate treatment of that group.” This principle has been applied to protect maligned groups from “hippies” (U.S. Dep’t of Agriculture v. Moreno) to the mentally disabled (City of Cleburne v. Cleburne Living Center) to lesbians and gays (Romer v. Evans, Lawrence v.Texas, and U.S. v. Windsor). In short, Trump cannot prevent trans soldiers from serving their country simply because he, and his base, do not like trans people.

The courts have so far risen to the task of protecting these and other fundamental rights – blocking policies fueled by nothing more than bare hatred of Muslims, or immigrants, or LGBTQ individuals, among others. This was no guarantee: throughout their history, the federal courts, up to the Supreme Court, have repeatedly endorsed discrimination against unpopular groups, bowing to popular will or their own private bias in upholding Jim Crow laws (Plessy v. Ferguson), Japanese internment (Korematsu v. U.S.), and sodomy bans (Bowers v. Hardwick). The Supreme Court has sometimes later reversed course: rejecting “separate but equal” in Brown v. Board of Education, and recognizing a right to same-sex consensual sexual intimacy in Lawrence v. Texas. This history reminds us that we cannot take the courts for granted, or assume that they will consistently protect society’s most vulnerable.

So far, Trump has been his own worst enemy in the series of judicial challenges to his discriminatory executive orders. Courts had little trouble finding that the Muslim ban was fueled by discriminatory animus given Trump’s extensive campaign rhetoric and tweets indicating a desire to harm Muslims by virtue of their faith. In rejecting the transgender service ban, the Court determined that Trump’s sudden announcement of the ban via Twitter tended to support that it was motivated by a desire to harm a politically unpopular group (at least among his own base) than any rational policy objective.

Beyond Trump’s inability to keep his mouth shut or his fingers away from his cell phone, his policies have also failed as a result of his Administration’s resistance to established procedures and its shoddy lawyering. For instance, in reference to the transgender service ban, the Court noted that it “by no means suggests that it was not within the President’s authority to order that additional studies be undertaken and that this policy be reevaluated. If the President had done so and then decided that banning all transgender individuals from serving in the military was beneficial to the various military objectives cited, this would be a different case.”

Although it seems unlikely that Trump will suddenly exhibit the discipline required by his office,  the extent to which courts have relied on the Administration’s missteps to overturn discriminatory policies suggests that we cannot simply assume courts will continue to do so, should Trump demonstrate a modicum of self-control. Further studies would be unlikely to support the President’s overblown, discriminatory rhetoric, so a transgender ban (for example) would be unlikely to succeed, all things being fair and equal, even if championed by a more competent administration – but only if people of conscience, including attorneys, continue to fight vigorously for America’s constitutional and statutory guarantees.

Moreover, while the federal courts have been preventing the worst of Trump’s abuses from coming to fruition, the Trump Administration has been working at a breakneck pace to fill the large number of judicial vacancies (more than 150) that remained unfilled at the end of the Obama presidency. Filling these vacancies with opponents of basic civil rights for LGBTQ individuals has been one of the few “successes” of the Trump presidency. Among the 50 or candidates Trump has nominated to lifetime federal judicial appointments include Jeff Mateer, who in 2015 referred to transgender children as proof of “Satan’s plan.” Another, John K. Bush (who has already been confirmed to a seat on the Sixth Circuit), had a previous side career as a right-wing blogger who derided LGBTQ individuals and promoted conspiracy theories about President Obama’s citizenship.

Thus, although the courts have largely risen to the extraordinary challenges posed by Trump’s discriminatory policies, that job will become increasingly difficult as Trump’s own judges come to represent a significant portion of the federal bench. If we expect the courts to keep up, we must remain vigilant and strenuously oppose those of Trump’s judicial appointees who will rubber-stamp the unfit President’s agenda.