SCOTUS and Workplace Discrimination

October 23, 2019 | Written by - Maeve Cassidy '22

On October 8, the eight Associate Justices of the Supreme Court of the United States’ and Chief Justice John G. Roberts began a hearing in regards to workplace discrimination for members of the LGBTQ community. The federal law in question is Title VII of the Civil Rights Act of 1964, commonly known as the Equal Employment Opportunity Act. Title VII explicitly prohibits workplace discrimination on the basis of “race, color, religion, sex, national origin, age (40 or older), disability, or genetic information.” However, it does not explicitly encompass sexual orientation and gender identity. According to the Human Rights Campaign, statistically 42% of those who identify as belonging to the LBGTQ community have experienced at least one form of workplace discrimination; additionally 90% of transgender employees have faced "harassment or mistreatment," according to the 2011 National Transgender Discrimination Survey, hosted by the National Center for Transgender Equality. Although several states ban the aforementioned discrimination through particular and individual state legislation, Ohio employees remain unprotected. After the departure of Justice Anthony Kennedy, who had a voting record of expanding LGBTQ rights, and his replacement by Associate Justice Brett Kavanaugh, the Supreme Court appears to lean against this interpretation of Title VII that includes LGBTQ protections. More specifically, the undecided vote belongs to Justice Neil Gorsuch, whose jurisprudence is based on strict interpretation of law and who has stated that he views this case as a “question of judicial modesty.” In an attempt to appeal to Justice Gorsuch, the respondent party has centered their arguments on strict interpretation and application of Title VII. Lawyer John Bursch, who defended a respondent in a gender-based discrimination case at the lower courts, stated that “[interpreting Title VII to include gender-based discrimination] drastically expands the meaning of sex discrimination and rewrites Title VII to add protected categories that Congress never included.” This argument was paralleled by lawyers in the Supreme Court who cited that Title VII was not intended to protect LBGTQ workers, thus making it the responsibility of Congress to amend such protections. This case is one of “statutory interpretation, not constitutional law,” and questions what is a legislative or judicial power, along with defining when the Supreme Court should intervene. In essence, this case is not a debate over discrimination, but the extent of the interpretation of federal law. Since Ohio does not hold state legislation in regards to sexual orientation and gender identity workplace discrimination, an undecided or negative resolution of the case would allow said to prevail. Ultimately, it will not be the strict interpretationists who are detrimentally affected, but rather the average employee who will continue to face discrimination.

Works Cited-

De Vogue, Ariane. “Historic Supreme Court arguments Tuesday in LGBTQ workplace rights dispute” CNN. Tue October 8, 2019. https://www.cnn.com/2019/10/08/politics/supreme-court-lgbtq-arguments/index.html

Liptak, Adam. “Can Someone Be Fired for Being Gay? The Supreme Court Will Decide” The New York Times. September 23, 2019 https://www.nytimes.com/2019/09/23/us/politics/supreme-court-fired-gay.html

“What You Should Know About EEOC and the Enforcement Protections for LGBT Workers” The U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm