By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
The United States Supreme Court ruled 6-3 on Monday in favor of protecting LGBTQ people against employment discrimination based on gender. Many expected the conservative-majority court to lean a different way because current federal anti-discrimination is completely silent on the subject of specific protections for sexual orientation or gender identity.
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However, the Court endorsed the argument made several times over the last decade by the Equal Employment Opportunity Commission (EEOC) under the Obama administration in the federal courts. Writing for the majority, Justice Neil M. Gorsuch noted, “An employer who fires an individual merely for being gay or transgender defies the law.”
“Until Monday’s decision, it was legal in more than half the states to fire workers for being gay, bisexual or transgender. The vastly consequential decision extended workplace protections to millions of people across the nation, continuing a series of Supreme Court victories for gay rights even after President Trump transformed the court with two appointments,” The New York Times explained.
EEOC Argued Discrimination against LGBTQ Individuals Is Gender Discrimination
No federal law affirmatively protects gay, lesbian and transgender individuals from employment-based discrimination, so the EEOC instead relied on existing gender protections under the 1964 Civil Rights Act. The EEOC essentially argued that discrimination against LGBTQ individuals is a kind of gender discrimination.
On gender identity, this is a straightforward and irrefutable argument. Discrimination against a person on the basis of whether that person is male or female is prohibited by federal law (absent any established bona fide occupational qualifications). So to the extent that gender dysphoria — a mismatch between one’s psychological and physical gender identities — is recognized by society, people who fall into this group should also receive equal protection against gender discrimination under the law.
But sexual orientation is a little more complicated. After all, issues dealing with the gender a person is attracted to are distinct from issues related to that person’s gender as an individual. Correct?
Wrong. The EEOC thoughtfully argued that, when an employer discriminates against a person based on that person’s sexual orientation, that employer is effectively discriminating against that person’s gender. Here’s how.
Imagine you are gay or lesbian and in a happy same-sex relationship with a partner. You apply for a job, and the employer refuses to hire you because of your same-sex relationship, proclaiming that she doesn’t support your gay or lesbian relationship.
Now imagine the exact same scenario, with the exact same relationship partner and the exact same prejudiced employer, but with one difference. You are of the opposite gender. Now your relationship with your partner is a heterosexual one, and presumably the employer — who objected to hiring you on the basis of your homosexuality — would now have no problem hiring you whatsoever.
Following from that example, here’s the EEOC argument: Isn’t the only difference between these two scenarios your gender? And if that’s true, then how is this anything other than a type of gender discrimination?
In making this argument, the EEOC cleverly sidestepped the need for Congress to pass any additional legislation specifically protecting LGBTQ individuals from discrimination — something unlikely to happen in the currently gridlocked political environment.
Opponents of these protections argued that, while gender discrimination protections could potentially be construed to protect LGBTQ individuals, this would not have been something that legislators in the 1960s could have anticipated their law being applied to when they wrote it; therefore, such an interpretation runs contrary to the legislative intent.
However, this argument was ultimately unpersuasive. While the legislators who authored and passed the 1964 Civil Rights Act could not have known that it would be used to protect the rights of LGBTQ individuals in the workplace, it was not beyond the scope of foreseeability. After all, there were gays and lesbians then too, although far fewer felt comfortable enough to embrace their sexuality publicly.
Yet the lawmakers made no specific proscriptions or exclusions regarding this potential application. The interpretation of laws — particularly those as impactful as the Civil Rights Act — must be periodically reevaluated as the morals and values of society evolve to meet new challenges and rectify past injustices.
Attitudes Have Changed for Many LGBTQ People
In the 1960s, homophobia and shaming of LGBTQ individuals in America was much more accepted and common than it is now. But we’ve learned much since then. We’ve recognized that LGBTQ people are human beings too. Today the majority of Americans support rights and equality for our LGBTQ family, friends, and neighbors, as we should.
Unfortunately, our legislatures today are often stacked through efforts like gerrymandering of districts, such that they don’t proportionally represent public opinion in ways they should. And this, combined with political gridlock between the two dominant parties, means that major changes through new legislation are few and far between. But in the absence of legislative action, our laws should still be reassessed with an eye toward the more enlightened values of modern times. And that is exactly what happened today.
Prior to this SCOTUS ruling, 22 states had taken it upon themselves to enact protections against sexual orientation discrimination in the workplace. But this Supreme Court decision does for employment what its 2015 decision did for marriage: It makes protection for LGBTQ people the presumptive common law of the land, unless and until Congress passes legislation to contravene it (which, again, is unlikely due to political gridlock).
There are still other questionable arenas beyond employment and marriage, though. For example, as a society we are still wrestling with questions over whether business owners should be allowed to refuse service to LGBTQ customers. But make no mistake: Monday’s Supreme Court decision is a major milestone in the continuing fight for equal protection of all people under the law.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.