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Monday, June 15, 2020

U.S. Supreme Court Rules That LGBT Employees Are Protected From Firing

Justice Neil Gorsuch at his investiture ceremony. 
Credit: Diego M. Radzinschi / National Law Journal 


The cases which led to this momentous decision are:

June 15, 2020 at 10:36 AM
"When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest," Justice Neil Gorsuch wrote for the majority. "Only the written word is the law, and all persons are entitled to its benefit."

The U.S. Supreme Court in a divided decision Monday said federal workplace laws prohibit employers from firing gay, lesbian and transgender workers.
The justices split 6-3, with Justice Neil Gorsuch writing the majority opinion. He was joined by Chief Justice John Roberts Jr., and the court’s liberal wing. Justices Brett Kavanaugh and Samuel Alito Jr. wrote separate dissents. Justice Clarence Thomas joined Alito’s dissent.
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees,” Gorsuch wrote in his 43-page opinion. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
At oral argument, Gorsuch was seen as possibly leaning toward a ruling for broad protections for LGBT workers based on the text of the law. But he also expressed concern about the possible social impact of providing Title VII coverage.
Alito stated in his 54-page dissent: “There is only one word for what the court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
Alto noted that numerous bills have been introduced over the past 45 years that would specifically add “sexual orientation” and “gender identity” to protections under Title VII. “But to date, none has passed both Houses,” he wrote.
Kavanaugh, in his separate dissent, wrote that the policy arguments for applying Title VII coverage were “weighty,” but, he added,  “we are judges, not Members of Congress. Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.” That analysis applies as well to whether Title VII covers gender identity discrimination, he wrote.
The court’s decision came in three cases which focused closely on the text of Title VII of the Civil Rights Act of 1964 which bars discrimination by employers “because of…sex.”. Two cases– Bostock v. Clayton County, Georgia, and Altitude Express v. Zarda—raised the question of sexual orientation under Title VII. R.G. and G.R. Harris Funeral Homes v. EEOC and Stephens centered on gender identity.
During arguments in October in Bostock and Zarda, Stanford Law’s Pamela Karlan, representing gay and lesbian employees, told the justices: “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave.”
But Alito noted that Congress has repeatedly declined to act on requests to address the sexual orientation issue. “And if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature,” he said.
Karlan’s opponents, Jeffrey Harris of the boutique firm Consovoy Park and U.S. Solicitor General Noel Francisco, argued that the sexual orientation and gender identity issues should be decided by Congress, not the high court. The EEOC, which has pushed for a broad reading of Title VII, did not join the Justice Department’s brief in the Supreme Court.
At the hearing, Justice Sonia Sotomayor countered that the original Congress used very clear words about what the statute meant. “And regardless of what others may have thought over time, it’s very clear that what’s happening fits those words. At what point do we say we have to step in?”
This is a developing story that will be updated.
Activists rally in support of LGBTQ rights at New York City Hall on October 8, 2019 in 
New York City.
Drew Angerer | Getty Images
  • The Supreme Court ruled on Monday that workers cannot be fired for being gay or transgender in a major win for members of the LGBT community. 
  • The 6-3 holding, authored by Justice Neil Gorsuch, a conservative appointed by President Donald Trump, is a blockbuster development in the history of gay rights in the United States.
  • While workers in about half the country were protected by local laws that prohibit discrimination based on sexual orientation or gender identity, there was no federal law that explicitly barred LGBT workers from being fired on that basis. 
The Supreme Court ruled on Monday that workers cannot be fired for being gay or transgender in a major win for members of the LGBT community. 
The 6-3 holding, authored by Justice Neil Gorsuch, a conservative appointed by President Donald Trump, is a blockbuster development in the history of gay rights in the United States.


“An individual’s homosexuality or transgender status is not relevant to employment decisions,” Gorsuch wrote. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

While workers in about half the country were protected by local laws that prohibit discrimination based on sexual orientation or gender identity, there was no federal law that explicitly barred LGBT workers from being fired on that basis.

Gorsuch was joined by Chief Justice John Roberts, a fellow conservative, and the four members of the court’s liberal wing, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented.

Advocacy groups immediately cheered the ruling. 

“This decision sends an unambiguous message that equal protection under the law applies to all and that an employee’s failure to adhere to an employer’s gender stereotype is not a license to discriminate,” Kristen Browde, co-chair of the National Trans Bar Association, said in a statement.


Sarah Kate Ellis, the president and CEO of GLAAD, a pro-LGBTQ group, said the decision “affirms what shouldn’t have even been a debate: LGBTQ Americans should be able to work without fear of losing jobs because of who they are.”

The court’s opinion, which was released only online as a precaution against Covid-19, did not immediately load in its entirety, possibly a result of high traffic to the Supreme Court’s website.

The cases were brought by three workers who said they were fired from their jobs because they were gay or transgender. They argued that Title VII of the Civil Rights Act, which says that employers may not discriminate based on “sex,” also applies to sexual orientation and gender identity.

Gorsuch wrote that discriminating against an employee because they are gay or transgender is by definition discrimination on the basis of sex.

“It doesn’t matter if other factors besides the plaintiff ’s sex  contributed to the decision.  And it doesn’t matter if the employer treated women as a group the same when compared  to men as a group,” Gorsuch wrote.

“If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently,  if changing the employee’s sex would have yielded a different choice by the employer—a statutory  violation  has occurred,” he wrote.

The workers who brought the cases are Gerald Bostock, a gay man who was fired from his job as a child welfare services coordinator in 2013 after joining a recreational gay softball league; Donald Zarda, who was fired from his job as a skydiving instructor after revealing his sexual orientation to a female client; and Aimee Stephens, a transgender funeral director who was fired after announcing her intention to present as a woman.

Gorsuch hinted at his feelings about the cases during oral arguments in October, telling David Cole, an attorney for Stephens, that he was “with you” on the text of the Civil Rights Act. But he warned that the case could lead to “massive social upheaval.”

In his opinion, Gorsuch made it clear that he viewed the text as the deciding factor in the case. 

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences  that  have  become  apparent  over  the  years,  including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male  employees,” Gorsuch wrote.
Gorsuch added: “But the limits of the drafters’ imagination supply no reason to  ignore the law’s demands.”

Only Bostock lived to see the cases decided. Zarda passed away before the case was argued and his challenge was pursued by his family. Stephens passed away last month at her home in Detroit, from kidney failure, according to her attorneys.


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