U.S. Supreme Court to Decide Whether Civil Rights Act Protects LGBT Individuals from Discrimination in The Workplace

During its 2019 2020 session, the US Supreme Court will decide whether LGBT individuals are protected from employment discrimination under the Civil Rights Act. Specifically, the Court will hear three cases involving employment discrimination against those who are gay or transgender and who were fired due to this fact.

History of Laws & EEOC Positions

While most Americans may assume that it is already illegal to fire someone for being gay or transgender, in fact, Congress has never explicitly passed additional legislation since the Civil Rights Act barring this discrimination against LGBT individuals in employment, housing, or public accommodations. However, since 2015, the Equal Employment Opportunity Commission (EEOC) has interpreted Title VII of the Act’s prohibition on discrimination due to “sex” to include gender identity and sexual orientation; meaning that even people living in states that do not have their own LGBT anti-discrimination protections can still sue in federal court. This is in fact a majority of Americans who live in the 30 states that lack this explicit protection for LGBT individuals in state law.

Division in the Federal Courts

Still, federal courts are currently divided on whether Title VII covers LGBT individuals: The Second and Seventh circuits have decided that it does, while the Fifth and 11th circuits have decided that it does not. This year, the US supreme court will break this divide, and many are concerned that, with a conservative majority currently on the Court, this can only result in stripping away what few protections LGBT individuals currently have.

An Argument In Favor Of Coverage

Still, the argument that discrimination against LGBT individuals in the workplace due to their sexual orientation is already covered by Title VII of the Act of strong: because gender identity and an individual’s sexual orientation cannot be defined with reference to sex, and Title VII already cover sex, arguably, Title VII automatically covers this discrimination. This is because firing someone due to the gender identity of the individual that they date involves treating them differently from other employees. In this case, the variable is sex; the sex of the employee, or the sex of a partner. This is analogous to the famous Loving v. Virginia case, which struck down state anti-miscegenation laws.

In addition, the fact that Congress did not necessarily contemplate the law protecting LGBT individuals in the 1960s when Title VII was passed could very well be irrelevant because the US Supreme Court has a history of disregarding legislator intent and instead looking at the plain language of the law. Specifically, the Supreme Court has already held that Title VII prohibits same-sex harassment because statutory provisions can go beyond the “principal evil to cover reasonably comparable to evils.” Over and over again, Supreme Court decisions have supported an expensive interpretation of Title VII.

Contact Our Attorneys with Any Questions

If you have questions concerning your civil rights, contact our experienced New York criminal defense attorneys at the office of Phillip J. Murphy today to find out how we can help.

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