SCOTUS to Decide if LGBT Workers Are Protected: What’s At Stake?

Today the U.S. Supreme Court announced it will hear three cases related to protections for LGBT people under federal law. The cases are Altitude Express Inc. v. Zarda, Bostock v. Clayton County, Georgiaand R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. The first two cases relate to whether federal employment law’s prohibition on sex-based discrimination also prohibits discrimination based on sexual orientation, while the last case examines whether the law prohibits discrimination based on gender identity. It is surprising for many people to learn that there is currently a confusing patchwork of legal protections for LGBT people.  While many federal courts and the Equal Employment Opportunity Commission (EEOC) already recognize that discrimination against LGBTQ people involves forms of unlawful sex discrimination, these protections are under attack. Are LGBT Workers Protected from Discrimination? Unravelling the Patchwork of Federal, State, and Local Employment Protections, a resource from MAP, the ACLU, and Lambda Legal helps to make sense of the current situation.

The U.S. Supreme Court taking these cases is important for a few reasons.

First, LGBT people lack explicit protections under federal law and have relied on explicit state-level protections, explicit county or city-level protections, and the ability to file a complaint with the Equal Employment Opportunity Commission (EEOC) to seek recourse when they are treated unfairly on the job.

Second, a growing number of district and circuit level federal courts have ruled that when someone is fired for being transgender, that firing is inherently based on sex stereotypes about what it means to be a man or a woman, and is thus illegal under existing federal law. Similarly, multiple courts have ruled that if a person is fired for their sexual orientation, that is also discrimination based on sex. For example, if a woman is fired for being married to another woman, that discrimination is based on her sex: if she were a man, being married to a woman would not lead to being fired. Yet, the employers in these cases say that it should be perfectly lawful to fire someone just because they are lesbian, gay, bisexual, or transgender.
The U.S. Supreme Court likely took these cases because of the “split circuits” on this issue as seen in these maps.

No one should be fired just because of who they are.

Finally, clarity from the U.S. Supreme Court could have an incredible impact on the lives of LGBT people.  One in four LGBT people report experiencing discrimination in the past year. If the Supreme Court were to affirm that discrimination based on sexual orientation and gender identity is illegal under federal law, that would mean that LGBT people nationwide would be protected by our nation’s civil rights legislation in the areas of employment, housing, education, and more. No longer would LGBT people’s access to basic equal protections depend on their state of residence. If the Court were to rule that federal law does not explicitly apply to sexual orientation and gender identity, it would bolster the case for the Equality Act and other state legislation that would explicitly prohibit discrimination based on sexual orientation and gender identity.

These cases will be argued before the court in fall of 2019.

For more about these cases and what’s a stake, read this brief authored by MAP, the ACLU, and Lambda Legal.