WASHINGTON — Three cases before the U.S. Supreme Court could have long lasting impacts on the rights of LGBTQ people in the workplace.
Bloomberg Businessweek reported that cases involving a child welfare worker, a skydiving instructor, and a funeral director could determine if an employer could discriminate against LGBTQ employees are before the court.
In recent years, some courts have ruled that the 1964 Civil Rights Act’s ban on sex discrimination also implicitly prohibits bias based on sexual orientation or gender identity. “When a male employee is fired because he has a husband, and he would not be fired if he were a woman who had a husband, then he was fired because of his sex,” says Jennifer Pizer, law and policy director for Lambda Legal Defense and Education Fund, a nonprofit that pursues LGBTQ civil rights cases. “When a trans woman was acceptable at work presenting as a man, but was fired when she presented her true gender, which is female, she was fired for being the wrong kind of woman.”
Citing past precedent that discrimination for not conforming to sex stereotypes is a form of illegal sex discrimination, several federal circuit courts have embraced such arguments, creating a patchwork of protections covering their jurisdictions. Next year the justices could either extend those protections nationwide or wipe them out. So in states that haven’t passed laws prohibiting anti-LGBT bias but have been covered by federal appeals court precedents restricting it—including Florida, Georgia, and Indiana—a Supreme Court ruling could give companies that don’t want LGBT people in the workplace a green light to fire them. “There won’t be a question mark anymore,” says Beall. “And because of that, I could see a whole lot more people discriminating.”
President Trump’s appointment of Justices Neil Gorsuch and Brett Kavanaugh, which made the Supreme Court more conservative than it’s been in a generation, could turn the tide. “My instincts suggest that this is an uphill battle,” says Anthony Michael Kreis, a visiting professor at Chicago-Kent College of Law who’s helped draft pro-LGBT legislation. The prospect of a loss at the Supreme Court raises the stakes for action in Congress, where Democratic allies have tried unsuccessfully for decades to pass a law that would explicitly ban anti-LGBT bias. “I don’t have a lot of confidence that the court will protect LGBTQ Americans from discrimination,” says Rhode Island Democratic Representative David Cicilline.