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LGBTQ groups vow to extend landmark court ruling beyond workplace

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Justice Samuel Alito warned that the ruling “is virtually certain to have far-reaching consequences,” in his dissent from the 6-3 decision.

The Supreme Court’s landmark ruling that federal anti-discrimination law extends to gay and transgender workers could usher in a new era of expanded rights for LGBTQ people in areas from housing to health care.

While the high court’s ruling Monday only applies directly to the workplace discrimination protections provided under Title VII of the 1964 Civil Rights Act, advocacy groups are vowing to extend to myriad other laws the justices’ view that discrimination “based on sex” includes sexual orientation or gender identity.

Justice Samuel Alito warned that the ruling “is virtually certain to have far-reaching consequences,” in his dissent from the 6-3 decision. “Over 100 federal statutes prohibit discrimination because of sex,” wrote Alito.

There are still no explicit federal legal protections for gay and transgender individuals in health care, credit and education, among other areas. Advocates are hoping the ruling will bolster efforts to win such protection in the courts or in Congress. Gabriel Arkles, senior staff attorney with the ACLU’s LGBT & HIV Project, said he expects hundreds of cases to be filed in the wake of the ruling.

“There’s so many other aspects of our lives where there are no federal protections, or where those protections are being challenged,” said Alphonso David, president of the Human Rights Campaign. “We have to recognize that Title VII is a great piece of legislation, but it does not provide comprehensive protections.”

The Supreme Court ruling affects employment, “the area of law where Congress has prohibited sex discrimination,” said Sarah Warbelow, legal director at the HRC, during a press call Monday. “We will fight to ensure that it extends to every sex non-discrimination statute in federal and state law.”

Conservative Justice Neil Gorsuch addressed this concern in the majority opinion, writing that “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”

“Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these,” he added.

The ACLU says it already plans to seize on the high court ruling to challenge the Trump administration’s move on Friday to formally roll back an Obama-era policy that banned health care providers from discriminating against transgender patients.

“The administration cannot rewrite the statute,” said Sean Young, legal director of the ACLU of Georgia, “and they cannot overrule the Supreme Court. So today’s decision directly undermines any of the administration’s attempts to eviscerate protections for LGBT people when it comes to health care.”

The Supreme Court ruling is a matter of statutory interpretation, meaning that Congress still has the ability to change the law.

“Not all of the provisions of the Act include sex as a protected characteristic, most notably, it’s missing from public accommodations, and from a guaranteed across the board non-discrimination with respect to federally funded programs,” said Warbelow. “Congress must act to provide those protections.”

Gay and transgender people have reported widespread harassment due to their orientation or gender identity.

At least 1 in 5 said they have experienced discrimination when applying for jobs, in their compensation, when being considered for promotion, or when trying to rent a room or apartment or buy a house, according to a 2017 survey conducted by National Public Radio and the Harvard School of Public Health.

A 2016 survey of nearly 28,000 people conducted by the National Center for Transgender Equality also found that 26 percent of trans people lost a job due to bias and that 50 percent were harassed on the job. Some 20 percent of respondents said they were evicted or denied housing, and 78 percent of trans students said they were harassed or assaulted.

Of the more than 23,000 Title VII sex-based discrimination charges the Equal Employment Opportunity Commission received in fiscal 2019, 1,868 were related to LGBTQ discrimination, according to the agency’s data.

In May 2019, the Democratic-controlled House passed the Equality Act, which would codify anti-discrimination protections based on sexual orientation and gender identity in housing, employment, credit and federally funded programs, among other areas.

But the bill hasn’t been taken up by the Republican-majority Senate and is not likely to go far, especially during an election year.

Absent a new law passed by Congress, attorneys say discrimination in other areas outside the workplace will have to be litigated in court.

“These issues are out there.” said Jim Paretti, a former chief of staff to the acting chair of the EEOC during the Trump administration. “They will continue to percolate,” he said, saying that questions around other statutes that use the same language as Title VII will have to be worked out in the courts.

This blog originally appeared at Politico on June 16, 2020. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter. Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.


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Senators are letting themselves off the hook with sexual harassment bill, women’s rights groups say

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Sexual harassment in Congress is a scandal—and it would probably be a lot more of one if Congress hadn’t written its own rules for dealing with allegations in secret. But since the #MeToo movement has shined a light on sexual harassment, the House of Representatives has managed to pass a decent bill. The Senate … hasn’t, and the bill it has coming up for a vote is not the answer. The American Civil Liberties Union, Equal Pay Today, the Leadership Conference on Civil and Human Rights, National Women’s Law Center, and Public Citizen are calling on the Senate to strengthen its bill.

Their letter points to serious weaknesses in the Senate bill, including that it doesn’t call for an independent investigator, instead putting approval of settlements in the hands of the ethics committees of both the House and the Senate to sign off on if the settlement is because of a member of Congress’s own actions:

“This provision appears to provide an opportunity for a Member who has settled a claim to avoid personal accountability and to be absolved from reimbursing the taxpayers,” the groups wrote in the letter.

Additionally, the Senate bill fails to hold members liable for discrimination settlements:

“A Member who has committed wrongdoing should be liable for all damages negotiated in a settlement or awarded by a court; they should not be shielded from the consequences of their actions,” they wrote.

Seriously. Time for Congress to be held accountable—and the way for that to happen is for Congress to write its own rules to demand accountability.

This blog was originally published at Daily Kos on May 25, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.


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Can federal workers blatantly discriminate against LGBTQ people? Jeff Sessions isn’t sure.

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During Wednesday’s Justice Department Oversight Hearing, Sen. Dick Durbin (D-IL) asked Attorney General Jeff Sessions about the Department of Justice’s new “religious freedom” guidance. In particular, Durbin was concerned about how the guidance might enable anti-LGBTQ discrimination, asking Sessions to respond to several hypotheticals.

“Could a social security administration employee refuse to accept or process spousal or survivor benefits paperwork for a surviving same-sex spouse?” Durbin asked.

There was a long pause. “That’s something I never thought would arise, but I would have to give you a written answer to that, if you don’t mind.” Sessions responded.

Durbin countered, “I’d like to have that,” then launched right into another hypothetical. “Could a federal contractor refuse to provide services to LGBTQ people, including in emergencies, without risk of losing federal contracts?”

“Likewise, but I would say to you — are you citing Title VII for this? Or the guidance? I’m not sure that’s covered by it, but I’ll look.”

It is highly unbelievable that Sessions had never considered these examples prior to Wednesday. More than two years ago, when he was still in the Senate, Sessions was one of the original co-sponsors of the First Amendment Defense Act (FADA), a bill that would grant those who have religious objections to same-sex marriage a license to discriminate. Many of the provisions in the new guidance mirror FADA’s language.

 In response to that bill’s introduction, the ACLU and LGBTQ advocacy groups pushed back, saying that it would be used to prop up discrimination. The ACLU, in particular, outlined FADA’s “parade of horribles” in a 2015 blog post, including the following two:
  • [It would] permit government employees to discriminate against married same-sex couples and their families – federal employees could refuse to process tax returns, visa applications, or Social Security checks for all married same-sex couples.
  • [It would] allow federal contractors or grantees, including those that provide important social services like homeless shelters or drug treatment programs, to turn away LGBT people or anyone who has an intimate relationship outside of a marriage.

Those are nearly identical to the hypotheticals Durbin asked Sessions to respond to on Wednesday. Still, years after they’d been highlighted by advocacy groups, Sessions claimed they had somehow never occurred to him before.

After Sessions’ dodged Durbin’s hypotheticals, the senator asked the attorney general to comment about the fact that “people are discriminating in the name of their own personal religious liberty.”

Sessions responded:

Yes, I would say that wherever possible, a person should be allowed to freely exercise their religion and not to carry out activities that further something they think is contrary to their faith. But at the same time, if you participate in commercial exchanges, you have limits on what you can do under those laws — public accommodation type laws. And so the balance needs to be properly struck — and I think we have. Those issues were discussed as we wrestled with this policy.

It’s unclear with whom Sessions discussed those issues. The Department of Justice apparently held “listening sessions”, but has refused to name which groups it consulted. The reason the public even knows these consultations took place at all is because the Alliance Defending Freedom — an anti-LGBTQ hate group that defends business owners who discriminate and challenges nondiscrimination protections in the name of “religious freedom” — bragged that it had participated in them.

Given Sessions said in an interview last week that he believes such discrimination should be allowed in the case of the anti-gay baker whose case is headed to the Supreme Court, it’s not hard to imagine how he might respond to Durbin’s hypotheticals, if pressed.

This article was originally published at ThinkProgress on October 18, 2017. Reprinted with permission. 

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.” He has a passion for education, having received a Bachelor’s in Music Education at Ithaca College and a Master’s in Higher Education at Iowa State University, and he relishes opportunities to return to classroom settings to discuss social justice issues with students. He can be reached at [email protected]


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Trump’s transgender military ban met with backlash

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President Donald Trump signed a long-awaited directive Friday evening that bans transgender people from enlisting in the U.S. military and bans the Department of Defense from providing military treatment to current transgender service members. The directive follows an announcement Trump made on Twitter last month, blindsiding the defense secretary and the public more broadly — and like last time, there Trump was met with a wave of backlash.

A draft of this memorandum was reported on Wednesday, and there has been widespread criticism from trans activists, lawmakers, and current and former members of the military over the last few days.

“When I was bleeding to death in my Black Hawk helicopter after I was shot down, I didn’t care if the American troops risking their lives to save me were gay, straight, transgender, black, white, or brown,” Sen. Tammy Duckwork (D-IL) said in a statement on Wednesday.

“It would be a step in the wrong direction to force currently serving transgender individuals to leave the military solely on the basis of their gender identity rather than medical and readiness standards that should always be at the heart of Department of Defense personnel policy,” Sen. John McCain (R-AZ) also said in a statement on Wednesday. “The Pentagon’s ongoing study on this issue should be completed before any decisions are made with regard to accession. The Senate Armed Services Committee will continue to conduct oversight on this important issue.”

Chase Strangio, a staff attorney at the American Civil Liberties Union (ACLU), shared an essay from his brother on the ban. “This is not about politics,” he wrote. “This is not about military readiness or cost. This is a calculated decision to discriminate against an already vulnerable group of people, one that will have devastating effects for countless Americans.”

Chelsea Manning, perhaps the military’s most famous trans service member, said Trump was “normalizing hate” and questioned its timing.

Defense Secretary Jim Mattis will have wide discretion on whether transgender service members can continue to serve, and he has six months to develop a plan to implement Trump’s memorandum.

As ThinkProgress reported last month, Trump’s decision to ban transgender service members from the military was about electoral politics, using transgender people as pawns after congressional infighting over funding for a wall along the U.S.-Mexico border. The military currently spends ten times more on erectile dysfunction as it would on transgender medical care.

This article was originally published at ThinkProgress on August 26, 2017. Reprinted with permission.

About the Authors: Amanda Michelle Gomez is a health policy reporter at ThinkProgressAdrienne Mahsa Varkiani is a Senior Editor at ThinkProgress. Before joining the team at ThinkProgress, she served as an editor at Muftah Magazine and worked in the Iranian American community. Varkiani received her master of science in international relations from the London School of Economics and Political Science and her bachelor’s degree in international studies from American University in Washington, D.C.


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