Courts and LawDomestic Policy

Fire at Will: The Supreme Court May Soon Declare Open Season on LGBTQ Employees

While we’re all focused almost exclusively on the COVID-19 crisis, a case with potentially disastrous consequences for the LGBTQ community sits in the United States Supreme Court like a ticking bomb.

Unless Congress acts in the meantime, sometime in the next two months the Supreme Court is likely to declare open season on LGBTQ employees of private companies.

Two cases that would greenlight unfettered employment discrimination against gays and transgender individuals are currently awaiting decision. The Court most likely will announce its decisions in May or June.

If the decisions go the way many observers believe they will, private employers will be able to fire LGBTQ employees at will. They will not have to justify the firings on the basis of a sincerely held religious belief. They will not have to claim that the employee has done anything wrong or has been anything other than a model employee.

They will be able to do it – legally – just because they don’t like gays or transgender individuals.

Who is asking the Court to do this? Bill Barr’s Department of Justice.

Here’s the story.

The two cases pending before the Supreme Court, Bostock v. Clayton County and Harris Funeral Homes v. EEOC, involve the reach of Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating on the basis of sex. The two cases raise, respectively, the issue of whether that prohibition applies to discrimination on the basis of sexual orientation and gender identification.

The importance of these cases derives in large part from the fact that there is no other federal law barring discrimination based on sexual orientation or gender identification. A number of states have such laws, but over half of them don’t. Federal employees already have some protection but, Title VII aside, there is no federal law prohibiting state or private employers from discriminating against the LGBTQ community.

In both cases, the United States has argued that Title VII does not prohibit discrimination against gays or transgender individuals.

In Bostock, a county employee was fired for “conduct unbecoming an employee” because he participated in a gay softball league. The U.S. government wasn’t a party in the case, but Bill Barr’s Department of Justice volunteered to weigh in anyway.  Last August, the DOJ volunteered to file an amicus brief arguing that Title VII provides no protection against discrimination on the basis of sexual orientation. 

The government conjured up an Orwellian argument that I’ll call the “Federal Uniform Discrimination Doctrine,” or FUDD. It goes like this: it’s OK for employers to discriminate on the basis of sexual orientation as long as they discriminate against all gay and bisexual employees. It’s only illegal if they don’t discriminate against some of them.

Think I made that up? Have a look:

“Sexual-orientation discrimination . . . involves less favorable treatment of gay or bisexual employees—men and women alike. So long as the employer treats similarly situated individuals of both sexes equally, it has not discriminated against either on the basis of sex. Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex, but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect.”

The DOJ made the same argument in the Harris Funeral Homes case.  It’s OK to discriminate against transgender individuals as long as you target all of them: “Showing that the employer treated all transgender individuals of both sexes less favorably than non-transgender persons, whatever the employer’s motivation, does not suffice” to establish a sex discrimination claim under Title VII. (Italics added)

Many observers of the oral arguments presented to the Supreme Court last Fall believe that the conservative majority is likely to adopt the government’s position that the LGBTQ and transgender communities have no protection under Title VII. 

Which means that gays and transgender individuals will have no federal protection against state or private employment discrimination anywhere in the United States, and no protection at all in the 29 states that don’t have their own anti-discrimination laws.

In other words, it will be open season on the LGBTQ community.

If you think it’s unlikely that the United States Supreme Court would greenlight this kind of discrimination, think again.

This is the Court that tied itself in knots to find the narrowest possible interpretation of the Constitution to permit states to rig elections by means that the Court itself acknowledged were “highly partisan,” “unjust,” and “incompatible with democratic principles.”  The Court was unable to find a single word or concept in the Constitution that prohibits that kind of corrupt assault on our democracy.

And this is the Court that stretched to find the broadest possible interpretation of a statute in order to permit a for-profit corporation to refuse to provide female employees with health insurance coverage mandated by law.  In order to get there, the Court had to find that a for-profit corporation was a “person” capable of holding religious beliefs.

Given the Court’s willingness to bend its reasoning in order to achieve the result it favors politically, how hard do you think it will be for the conservative majority to find a way to side with employers who want to be free to fire gay and transgender people at will?

But all of this can be avoided.

Even the Trump administration admits that Congress can prohibit employment discrimination based on sexual orientation and gender identification. They just say that it hasn’t.

Congress can take this decision out of the hands of the Supreme Court with the stroke of a pen.

All it has to do is add four words to Title VII.  The law could be amended to prohibit not only discrimination on the basis of sex, but also on the basis of “sexual orientation” and “gender identification.”  Four words.

Or it can pass the Employment Non-Discrimination Act (ENDA), a stand-alone bill that has been introduced in virtually every Congress since 1994, but never enacted into law.  ENDA would prohibit all employers with 15 or more employees from discriminating in hiring and employment on the basis of sexual orientation or gender identity.

Or Congress can continue to do nothing.

In which case, the job security of gay and transgender individuals will be left to the tender mercies of the Roberts Court.

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