While COVID-19 has our full attention, two cases with potentially disastrous consequences for the LGBTQ community sit in the U.S. Supreme Court like a ticking bomb.
The two cases that could greenlight unfettered employment discrimination against gays and transgender individuals are awaiting decision in May or June. If the decisions go the way some 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 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.
And this is precisely what the U.S. government is asking the court to do.
The two cases, Bostock v. Clayton County and Harris Funeral Homes v. Equal Employment Opportunity Commission, involve Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating on the basis of sex. The cases raise the issue of whether that prohibition applies to discrimination on the basis of sexual orientation and gender identification.
The stakes are enormous because there’s no other federal law barring discrimination based on sexual orientation or gender identification. Some states have such laws, but over half of them don’t. Federal employees have some protection, but there’s no federal law prohibiting private employers from discriminating against the LGBTQ community.
In Bostock, an employee was fired for “conduct unbecoming an employee” because he participated in a gay softball league. The Department of Justice filed 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.” The FUDD goes like this: It’s OK for employers to discriminate on the basis of sexual orientation as long as they do so uniformly against all LGBTQ individuals. It’s only illegal if they discriminate against some, but not all of them.
Think I made that up? Have a look at part of that amicus brief:
“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 government made the same argument in the Harris 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.”
If the court agrees with the government’s position, the LGBTQ community will have no protection at all in at least 29 states.
If you think it’s unlikely that the court would greenlight that 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 gerrymandering that it acknowledged was “highly partisan,” “unjust” and “incompatible with democratic principles.” The court couldn’t find a single word in the Constitution that prohibits that kind of 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 corporation to refuse to provide female employees with health insurance coverage mandated by law. In order to get there, the Supreme 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 to achieve a desired result, how hard would it be for the conservative majority to find a way to side with employers who want to be free to fire gay and transgender people?
All of this can be avoided, though. 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 discrimination on the basis of “sexual orientation” and “gender identification.” Four words.
Or it can pass the Employment Non-Discrimination Act, a bill that has been introduced in Congress repeatedly since 1994. ENDA would prohibit employers from discriminating on the basis of sexual orientation or gender identity.
Or Congress can 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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ABOUT THE WRITER
Philip Rotner is a Chicago attorney.
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