Posted on

Will the Supreme Court Decide It’s OK for Workers to be Fired For Being Gay?


Can your employer fire you over your sexual orientation? The Supreme Court will soon decide.

Three cases about workplace discrimination against LGBTQ employees have reached the nation’s highest court, with justices hearing oral arguments earlier this month.

At issue is a single word in Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of “sex.” Over the years, that has been interpreted liberally to include gender identity and sexual orientation – since mistreating a male worker for liking men, for example, would be the same thing as saying that he failed to live up to your stereotype that men like women.

Now that interpretation may be thrown into doubt.

The first case brought before the court deals with a funeral director who was fired after telling her employer that she would transition from male to female. 

In the second case, a county employee was fired after his employer found out he was gay; his orientation was discovered due to his participation in a LGBTQ softball league.

The third case is about a male skydiving instructor who lost his job after trying to reassure a female client that she didn’t need to worry about a tandem skydive with the instructor because he was gay.

In each of these cases, the lower courts reached inconsistent conclusions. The Supreme Court agreed to hear the cases and potentially settle the issue once and for all.

Oral Arguments at the Supreme Court

The four liberal leaning Justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — are expected to find that Title VII’s prohibition on sex discrimination also includes a prohibition on gender identity and sexual orientation discrimination. And their questioning during oral arguments, as well as their prior votes in Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015, support that prediction.

Considering how Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito sided in Obergefell, it would be quite surprising if any of them sided with the four liberal leaning Justices. Justice Alito was also very critical of the workers’ legal positions during oral arguments.

The real wildcards are Justices Brett Kavanaugh and Neil Gorsuch. With respect to Justice Kavanaugh, there is little in the way of his judicial history on LGBTQ rights to predict how he might vote. Although given his overall conservative leanings, many predict he will side with the conservative justices. Additionally, during oral arguments, he asked very few questions and none of those potentially tipped his hand in how he viewed the cases and LGBTQ rights in general. 

During oral arguments, all eyes and ears were mostly focused on Justice Neil Gorsuch as the potential swing vote. While considered a conservative, a textualist and an originalist, Justice Gorsuch is known to sometimes disagree with his conservative colleagues. 

Gorsuch acknowledged that the sex of the workers who were fired was at least a contributing factor to their firings.  He also recognized that the question of whether Title VII protected against gender identity and sexual orientation discrimination was a close call. 

But he also expressed concern that if the Supreme Court were to find in favor of the workers, it might result in a “social upheaval” and serve as an example of the Supreme Court’s lack of “judicial modesty.”  

When Will We Find Out How the Supreme Court Will Rule?

The Supreme Court is allowed to issue its decision at any time, as long as they do so before the end of its term. However, more important cases tend to take longer to be decided. 

In many instances, potentially landmark decisions are handed down towards the end of the Supreme Court’s term, which will be during the spring or summer of 2020, meaning the decision could become a political football, much as the court’s upholding of the Affordable Care Act played a role in the 2012 election. 

If the court strikes down the interpretation, the Democratic presidential candidates will likely add legislation adding sexual orientation to anti-discrimination law to their platform, as they did after the court narrowed equal pay laws in the Lilly Ledbetter case.

Whether that legislation is signed into law any time soon – and how Republicans in Congress respond – would be the biggest questions. 

Given the importance of these cases, a decision is not expected until at least May of 2020, although in this political climate, almost anything is possible.

Source: Forbes – Leadership