INTRODUCTION
On October 8, 2019, The United States Supreme Court heard consolidated cases pertaining to Title VII of the Civil Rights Act and its application to LGBTQ workers and their nondiscrimination rights at the workplace. We now await what will surely be a landmark decision, which could be handed down any day.
The outcome of these cases will determine, under federal law, whether hardworking, high-performing LGBTQ employees can be fired from their jobs, lose their health care, and lose the ability to take care of their families—just because of who they are. This is a watershed moment for LGBTQ people across America, no matter which way the court sides.
THE PRESENTED CASES
Bostock v. Clayton County, Georgia: After a decades-worth of experience and following numerous accolades as a welfare services coordinator for Clayton County, Gerald Bostock was suddenly terminated from his job for so-called “conduct unbecoming of its employees.” The problem? Bostock joined an extra-curricular gay softball league. Bostock’s work colleagues made disparaging remarks about his sexual orientation in front of his supervisor, which led to an internal audit of his work and ultimate termination.
Altitude Express v. Zarda: Don Zarda was an LGBTQ man who worked for a skydiving business on Long Island, New York. Zarda was immediately fired after he revealed he was LGBTQ during business hours – fitting a disturbing history of anti-LGBTQ encounters from the business. Zarda sued business because of clear anti-LGBTQ discrimination. Zarda has passed away, but the case is being managed by his sister, Melissa Zarda, and former partner, Bill Moore.
R.G. & G.R. Harris Funeral Homes v. EEOC: Aimee Stephens worked at a funeral home in Detroit, Michigan. She was terminated after she came out as transgender to her supervisor. Two weeks later, Aimee’s role was terminated at the funeral home. Aimee took her case to the Equal Employment Opportunity Commission (EEOC) where the agency sued the company on behalf of her.
HOW THE DECISION COULD PLAY OUT
1. The Court Grants Nationwide Workplace Protections for LGBTQ Americans:
- The U.S. Supreme Court could deliver a watershed moment for fairness and equality, again affirming that simply being LGBTQ is not a grounds for any form of workplace discrimination in the United States.
- This decision would reinforce the overarching truth that LGBTQ people are, and should be, protected from discrimination under federal law.
2. The Court Strikes Down Federal Protections for LGBTQ Workers, Leaving People Vulnerable to Discrimination in 26 States:
- A total loss would be an outrageous attack that exposes the vulnerability LGBTQ Americans have across the nation.
- LGBTQ Americans could be exposed to discrimination at their jobs – or even fired – if the U.S. Supreme Court strikes down existing federal workplace protections.
- Nearly half the states have non-discrimination laws. It is unlikely that a ruling would roll these laws back.
3. Mixed
- In addition to a clear win or loss, the court could deliver a ruling that is a loss for gender identity and a win for sexual orientation, a win for gender identity and a loss for sexual orientation, or that is a narrow win/loss for either side.
- Any ruling that allows discrimination based on gender identity but not sexual orientation—or vice versa—and/or does not offer the same level of protections as it does for other protected classes would fall short.
WHAT A POSITIVE OUTCOME WOULD MEAN FOR LGBTQ AMERICANS
Even in the event of an historic ruling against discrimination and for LGBTQ employees, it would:
- Still be legal under federal law for stores and restaurants to discriminate against LGBTQ people.
- Still be legal for transgender people to be harassed in restrooms and gyms.
- Still be legal for federally funded programs, including hospitals, colleges and adoption agencies, to discriminate against LGBTQ people.
WHAT A NEGATIVE OUTCOME WOULD MEAN FOR LGBTQ AMERICANS
In the event of a negative ruling, it would:
- Give companies a right to discriminate against LGBTQ employees under federal law.
- Tell hardworking LGBTQ people that our nation’s highest court believes they should be able to be fired from their job, lose their health care, and lose the ability to take care of their family—just because of who they are.
- Strip away existing federal employment protections for LGBTQ people.
- Undermine our nation’s non-discrimination laws and invite discrimination and harassment against LGBTQ people nationwide.
- Gut more than two decades’ worth of legal rulings that currently protect LGBTQ people from discrimination across the United States.
PUBLIC OPINION
Public opinion supports LGBTQ Americans:
Americans believe LGBTQ people already have such protections:
- A June 2019 Reuters/Ipsos poll found that only 23-percent of Americans realize that federal anti-discrimination protections for LGBTQ people do not already exist.
The business community wants these protections:
- Over 200 major businesses, including American Airlines, Bank of America, Marriot, etc., filed an amicus brief in support of protecting LGBTQ Americans from discrimination at the workplace.
EXPERTS TO INTERVIEW
Aimee Stephens, plaintiff. Email [email protected] to schedule an interview.
Melissa Zarda and Bill Moore, plaintiffs. Email [email protected] to schedule an interview.
Gerald Bostock, plaintiff. Email Megan Paquin [email protected] to schedule an interview.
Gabriel Arkles, attorney for Aimee Stephens: Email [email protected] to schedule an interview. About Gabriel: Gabriel Arkles is a Senior Staff Attorney with the ACLU. Prior this, he defended transgender rights as staff attorney and Director of Prisoner Justice Initiatives at the Sylvia Rivera Law Project.
Chase Strangio, Deputy Director for Transgender Justice for ACLU: Email [email protected] to schedule an interview. About Chase: Chase Strangio is Deputy Director for Transgender Justice with the ACLU’s LGBT & HIV Project and a nationally recognized expert on transgender rights. Chase’s work includes impact litigation, as well as legislative and administrative advocacy, on behalf of LGBTQ people and people living with HIV across the United States.
David Cole, ACLU Legal Director, argued Aimee Stephens’ case before SCOTUS: Email [email protected] to schedule an interview. About David: David Cole directs a program that includes approximately 1,400 state and federal lawsuits on a broad range of civil liberties issues. Cole has litigated many constitutional cases in the Supreme Court, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flag burning; Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the ACLU represented a gay couple refused service by a bakery because they sought a cake to celebrate their wedding; and Harris Funeral Homes v. Stephens, which asked whether Title VII bans discrimination on the basis of transgender status.
Pamela S. Karlan, Co-director, Supreme Court Litigation Clinic at Stanford Law School, argued Don Zarda and Greg Bostock’s cases before SCOTUS: Email [email protected] to schedule an interview. About Pam: Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of the Supreme Court Litigation Clinic at Stanford Law School, which has participated in over eighty merits cases at the Court. Karlan has argued nine cases before the Supreme Court and was counsel in Obergefell v. Hodges and while a U.S. Deputy Assistant Attorney General led the implementation of the Windsor v. United States decision.
Sarah Kate Ellis, President and CEO for GLAAD: Email [email protected] to schedule an interview.
Zeke Stokes, Senior Adviser for GLAAD: Email [email protected] to schedule an interview.
Shannon Minter, Legal Director for National Center for Lesbian Rights (NCLR): Email Christopher Vasquez at [email protected] to schedule an interview. About Shannon: Shannon Minter is the Legal Director for the NCLR and was the lead attorney in Christian Legal Society v. Martinez, a U.S. Supreme Court decision upholding student group policies prohibiting discrimination based on sexual orientation and gender identity, and rejecting the argument that such policies violated a student group’s rights to freedom of speech, religion, and association.
