LGBTQ Workplace Rights; The Opinions Are In

LGBTQ Workplace Rights
By William Vogeler, Esq. on May 02, 2019 12:01 PM

The U.S. Supreme Court agreed to hear three LGBTQ cases last week, and the advocates are already making their arguments.

No, it's not an accelerated briefing schedule. These advocates are making their cases in the court of public opinion. From lawyers to law professors to journalists to the everyday court-watcher, the opinions are in. Of course, the Supreme Court doesn't really care about any of that. The real legal question is actually two questions in one: Does Title VII protect people based on their sexual orientation and gender identity?

Sexual Orientation and Gender Identity

Everybody already knows what the lawyers will say in their arguments to the Supreme Court. In Altitude Express v. Zarda and Harris Funeral Home v. EEOC, the petitioners will ask for reversals.

In the Zarda case, the U.S. Second Circuit Court of Appeals said that sexual orientation is covered by Title VII. In the Harris case, the Sixth Circuit said it applies to transgender people, too. In the third case, Bostock v. Clayton County, the Eleventh Circuit ruled against a worker who complained of discrimination based on sexual orientation.

They really are separate issues, but the Supreme Court consolidated them for good reason. Jeff Hirsch, a labor and employment law professor, doesn't feel good about the reason. "To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement," he wrote for the Workplace Prof Blog. Unlike the attorneys in the case, Hirsch doesn't have skin in the game. That's saying something when it comes to other opinions.

'Wider Consequences'

In the court of public opinion, the Los Angeles Times says the cases could have wider consequences for everyone. By that, Shannon Minter means everybody who claims sex discrimination in the workplace. She says the Supreme Court could "reverse decades of precedent and strip legal protections from millions of LGBTQ workers."

"What may be less obvious, however, is how the Trump administration -- in siding against the LGBTQ employees -- is attacking sex discrimination law more broadly," she wrote. Minter, who is legal director of the National Center for Lesbian Rights, says an adverse decision would produce a "radical change in the law." It would eliminate many of Title VII's most vital protections, she says, leaving bare victims of sexual harassment, hostile environment and gender stereotyping.

Certainly, the U.S. Supreme Court won't do that. At least not this term.

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