Last week I discussed whether “heterosexuals” were a protected class. Well, the Supreme Court must have read my blog! Last week the Justices agreed to hear appeals in three cases, to decide whether Title VII’s prohibition against “sex discrimination” expressly includes prohibitions against LGBTQ discrimination.
Currently, only 21 states have statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sector. For the other 28 states how SCOTUS decides these issues under Title VII has huge legal consequences.
To recap where we are: Title VII does not expressly prohibit discrimination on the basis of LGBTQ status. However, a majority of courts that have looked at this issue (but not all), and the EEOC, conclude that Title VII’s definition of sex includes LGBTQ rights.
Barstock and Zarda stand on opposite sides of this issue—the former holding that Title VII’s definition of “sex” does not, as a matter of law, include “sexual orientation,” and the letter saying otherwise. Harris Funeral Homes reached the same conclusion as Zarda, but on the issue of gender identity (i.e., transgender status and transitioning identity).
It’s too early to say how SCOTUS will rule, but the Justices to watch are Chief Justice John Roberts, the current ideological center of the Court, and Justice Kavanaugh, the Court’s newest Associate Justice.
Chief Justice Roberts wrote a passionate dissent against a constitutional right to same-sex marriage in Obergefell v. Hodges. Will his ideology change when the issue moves from the bedroom and the Constitution to the workplace and a statute? Only time will tell.
Justice Kavanaugh, who never offered a public opinion on this issue, is very much a wildcard because he has never ruled on an LGBTQ rights case and has made very few public statements on LGBTQ issues, so it is hard to determine what his views are. He also may be disinclined to lead in very different directions than Justice Kennedy, who was his mentor, for whom he clerked, who swore him in, and whose seat he is filling.
However, keep in mind, as an employer you could short-circuit all of this legal wrangling simply by not discriminating on the basis of sexual orientation and gender identity. Your employees are your best asset no matter who they are. No employee should suffer at work because of the gender of the person they love, or because of the gender with which they identify. Nothing SCOTUS says about this issue will change the way people feel about another but within the confines of the workplace it is important for every employee to be respected.
Some states, like California, now require employers to conduct sexual orientation training for employees. Again, in my opinion, this is not a bad thing. The more education managers receive, the less litigation a business may encounter. Do the math.