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Why the Supreme Court case on LGBT worker protections will be pivotal

libadmin October 8, 2019

LGBT supporters demonstrate outside the U.S. Supreme Court in Washington on Oct. 8, 2019. (Alex Wroblewski/Bloomberg News)
October 8 at 5:13 PM

Hundreds of people filled the streets outside the Supreme Court on Tuesday to share their views on an issue that could have significant ramifications on the lives of LGBT Americans in the workplace.

The case, considered one of the most consequential of the current term, will determine the length to which Title VII of the Civil Rights Act of 1964 goes to protect against workplace discrimination. The act prohibits discrimination “because of sex,” which the court has interpreted to mean no discriminating based on sexual stereotypes. But there are questions about whether that protects LGBTQ people.

The Washington Post’s Robert Barnes and Ann Marimow reported that the court combined two cases to determine whether gay employees are covered.

In one case, Gerald Bostock said he was fired from his social worker job after he became more vocal about being gay. And Donald Zarda said he was fired from his job as a skydiving instructor after he joked with a female client that he was gay. (Zarda died in 2014.)

The Post reported:

Attorney Pamela S. Karlan, representing the two gay employees, told the court that firing a man for marrying another man, but not a woman for marrying a man, was clearly sex discrimination and covered by the law.

But Jeffrey M. Harris, the lawyer for the employers, distinguished between sex and sexual orientation, which he said are independent and distinct characteristics.

Alphonso David, president of the Human Rights Campaign, one of the country’s largest LGBTQ rights organizations, has spent years working as a lawyer on civil rights issues in the nonprofit and government sector.

He listened to court arguments Tuesday morning before talking to the Fix about the case and the possibility that a ruling could come as early as the first quarter of 2020. Below is our conversation, which has been lightly edited for clarity and length.

The Fix: What is it that is being argued?

David: There’s really two questions here. One is whether or not sexual orientation is protected under federal civil rights laws. The second is whether gender identity is protected under civil rights law. It’s possible that we can get different rulings or it could be consistent.

The Fix: Multiple LGBT activists have said this is arguably the most significant case for gay rights currently being decided. What are the implications of this ruling?

David: The implications for the LGBTQ community are quite significant because we have been relying on case law for the past 20 years. Cases that have been issued by a variety of courts for the past 20 years. Courts have concluded that federal civil rights laws do protect LGBTQ people from discrimination. So if the court issues a ruling that is inconsistent with those decisions, it could be a dramatic sea change for LGBT people across the country.

The Fix: This case has caused some people to discuss the importance of the Equality Act, a sweeping bill I previously wrote about that would ban discrimination against the LGBTQ community. What impact could this case have on the 2020 election?

David: It all, of course, depends on what the court does. If the court issues a ruling that is consistent with the decisions that we’ve been relying on for the past 30 years, I think it further mobilizes people to get involved in the electoral process to make sure that elected officials will pass the Equality Act to enshrine those rights.

If we get a negative decision, there’d be shock that they are no longer protected by federal civil rights and would also become more mobilized as a result.

The Fix: What is your outlook given that you heard the case and are closely familiar with this issue?

David: Well, I am cautiously optimistic after this morning’s arguments. … I think the lawyer representing this plaintiff argued: No, we are not doing anything new here. We’re just asking you to affirm what everyone has relied on for decades — that LGBT people should be protected under federal civil rights laws.

I know that we traditionally have four justices that have been supportive of LGBT civil rights issues, but it’s too soon to tell if we’ll get a fifth justice or a sixth justice.

The Fix: This case obviously matters to many LGBTQ people across the country, but why should those outside of the gay community view this case as significant?

David: I would say that in the 1960s Congress made a decision to address systemic discrimination in our culture, and they passed the Civil Rights Act of 1964. And that statute is supposed to make sure that our workplaces are free of discrimination, so I would hope that all Americans support the notion that we should be able to go to work without facing discrimination. We should be able to work and succeed in our jobs because discrimination has no place in our communities and no place in our culture.



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