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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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Supreme Court will decide if it is legal to fire someone for being LGBTQ

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When Justice Anthony Kennedy announced he would leave the Supreme Court last June, he gave a giant middle finger to millions of gay, lesbian, and bisexual Americans who saw the Court slowly begin to respect their humanity. Though Kennedy was very conservative on most issues, he was relatively moderate on gay rights questions, and often joined with the Court’s liberal bloc to vindicate these rights.

Kennedy’s replacement, Brett Kavanaugh, is a much more doctrinaire conservative who is unlikely to have much sympathy for LGBTQ plaintiffs. So the shift from Kennedy to Kavanaugh is likely to be felt hard in three cases the Supreme Court agreed to hear on Monday.

Altitude Express Inc. v. Zarda and Bostock v. Clayton County both ask whether existing federal law prohibits employment discrimination on the basis of sexual orientation. R.G. & G.R. Harris Funeral Homes v. EEOC asks the same question about anti-trans discrimination.

In all three cases, the legal arguments against saying that such discrimination is forbidden are exceedingly weak. Title VII of the Civil Rights Act of 1964 forbids employment discrimination “because of . . . sex” (the word “sex” in this context refers to gender and not to sexual intercourse), and it is difficult to argue that firing someone for being LGBTQ is not a form on gender discrimination.

As the appeals court explained in Harris Funeral Homes, the trans discrimination case, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The whole point of such a firing is that the employee’s boss does not believe that the employee identifies with the proper gender.

Similarly, suppose that a woman is fired because she is a lesbian. A lesbian is a woman who is sexually attracted to women, but presumably the same employer would not fire men who are sexually attracted to women. Thus, this woman was fired because she has desires that male employees are allowed to have. That is gender discrimination.

Additionally, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is illegal gender discrimination. Firing an employee because you believe them to be a man who is behaving too much like a woman is sex stereotyping. Similarly, the notion that only men may have sex with women and vice-versa may be the ultimate sex stereotype.

So if the Supreme Court follows the law in ZardaBostock, and Harris Funeral Homes, they will rule in favor of the plaintiffs in a 9-0 decision. That outcome, however, is unlikely.

If a decade of increasingly ridiculous judicial opinions striking down Obamacare has taught the legal profession anything, it should be that, in politically charged cases, judges are more likely to behave like raw partisans rather than as jurists.

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Republicans control a majority on the Supreme Court. Republicans oppose LGBTQ rights. It’s not hard to guess how ZardaBostock, and Harris Funeral Homes are likely to be decided.

About the Author: Ian Millhiser is a columnist for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

This article was originally published at ThinkProgress on April 22, 2019. Reprinted with permission.


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King and Meany Brought Civil Rights and Labor Together for a Legacy That Continues Today

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Beginning in 1960, Dr. Martin Luther King Jr. and then-President George Meany of the AFL-CIO began a relationship that would help bring the labor and civil rights movements together with a combined focus on social and economic justice.

Meany was an outspoken defender of individual freedom, and in March 1960, he emphasized the crucial link between the union and the civil rights movements. He told an AFL-CIO gathering, “What we want for ourselves, we want for all humanity.” Meany met with King to privately discuss how they could work together. King proposed that the AFL-CIO invest pension assets in housing, to help lessen economic inequality. The AFL-CIO then established the Investment Department in August 1960 to guide union pension funds to be socially responsible investors.

The next year, King spoke to the AFL-CIO Executive Council, comparing what labor had achieved to what the civil rights movement wanted to accomplish: “We are confronted by powerful forces telling us to rely on the good will and understanding of those who profit by exploiting us. They resent our will to organize. They are shocked that active organizations, sit-ins, civil disobedience, and protests are becoming every day tools just as strikes, demonstrations, and union organizations became yours to insure that bargaining power genuinely existed on both sides of the table.” At the AFL-CIO Constitutional Convention later that year, Meany made civil rights a prominent item on the agenda, and King spoke to the delegates about uniting the two movements through a common agenda, noting that African Americans are “almost entirely a working people.”

Not only did the AFL-CIO provide much-needed capital to the civil rights movement, but numerous affiliates did as well. Several combined to give more than $100,000 to King’s Southern Christian Leadership Conference. The UAW directly funded voter registration drives in predominantly African American areas throughout the South and paid bail money for jailed protesters. Meany and the AFL-CIO also used their considerable political influence in helping to shape the Civil Rights Act of 1964 and Voting Rights Act of 1965.

Union activists were a key part of the March on Washington for Jobs and Freedom as well. The Industrial Union Department of the AFL-CIO endorsed the march, as did 11 international unions and several state and local labor councils. A. Philip Randolph, then-president of the Brotherhood of Sleeping Car Porters, was a key organizer of the event. UAW President Walter Reuther was a speaker at the march, condemning the fact that African Americans were treated as second-class economic citizens.

King’s final act in pursuit of social and economic justice was in support of the sanitation strike in Memphis, Tennessee. After his death, then-President Lyndon B. Johnson sent the undersecretary of labor to settle the strike, and the city acceded to the demands of the working people, leading to the creation of AFSCME Local 1733, which still represents sanitation workers in Memphis.

In 1964, Meany sent a letter to all AFL-CIO affiliates outlining an new pathway that would directly support housing construction and homeownership. In 1965, the Investment Department helped establish the Mortgage Investment Trust, which was the formal embodiment of the socially responsible investment plan and gave a boost to badly needed affordable housing construction. In 1984, the Mortgage Investment Trust was replaced by the AFL-CIO Housing Investment Trust, one of the first socially responsible investment funds in the United States. Since it was created, the HIT has grown to more than $4.5 billion in net assets and has helped finance more than 100,000 affordable housing units and helped create tens of thousands of union jobs.

The partnership between civil rights and labor launched by King and Meany has helped the country make great strides in the intervening years, and the partnership continues.

This blog was originally published at AFL-CIO on January 12, 2018. Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.


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Federal appeals court holds workers can’t be fired for being gay

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With a lopsided majority joined by a bipartisan coalition of judges, the United States Court of Appeals for the Seventh Circuit held on Tuesday that discrimination on the basis of sexual orientation violates federal civil rights law, at least in the context of the workplace.

The court telegraphed in an order last October that Hively v. Ivy Tech Community College was likely to be a victory for victims of discrimination in the workplace. The final vote in the case, however, is a bit more surprising.

Eight of the Seventh Circuit’s judges joined Tuesday’s opinion, including Republican appointees Richard Posner, Joel Flaum, Frank Easterbrook, Ilana Rovner, and Kenneth Ripple. Only three judges dissented.

The case involves Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of an employee’s “sex.” Though Title VII contains no explicit statement that discrimination on the basis of “sexual orientation” is prohibited, two crucial Supreme Court precedents inform Chief Judge Diane Wood’s majority opinion in Hively.

The first is Price Waterhouse v. Hopkins, which established that Title VII’s ban on sex discrimination is violated when an employee faces discrimination due to gender stereotyping. Thus, in that case, a female accountant could allege illegal discrimination if she was denied a partnership because her superiors deemed her too masculine. (One partner told her to take “a course at charm school.” Another deemed her too “macho.”)

One of the the core insights of Chief Judge Wood’s decision in Hively is that, because she is a lesbian, “Hively represents the ultimate case of failure to conform to the female stereotype.” Stereotypical women enter into romantic and sexual partnerships with men. Hively defies this stereotype by engaging in such relationships with women. So presuming that she must prefer relations with men is itself a form of gender stereotyping forbidden by Hopkins.

Wood’s opinion also offers several other reasons why sexual orientation discrimination should be understood as a form of sex discrimination. Indeed, as Wood explains, this case is actually pretty straightforward. “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her,” Wood writes. If this claim proves to be true, then it “describes paradigmatic sex discrimination.”

In reaching this conclusion, Wood acknowledges that the lawmakers who drafted the Civil Rights Act of 1964 probably did not expect it to be used this way. But the conclusion that Title VII can be read more expansively than its drafters anticipated was embraced by Justice Antonin Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services.

Oncale was a case of male-on-male sexual harassment, something that, as Scalia wrote, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But so what?

As Scalia explained, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

A prohibition on discrimination “because of . . . sex” was expansive enough to cover male-on-male sexual harassment in Oncale. And it is big enough to encompass discrimination on the basis of sexual orientation. So holds the Seventh Circuit in Hively.

As Wood notes in her opinion, “for many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation.” Hively is now an outlier, and the Supreme Court typically takes up cases where the federal appeals courts disagree. It is all but certain to take up this case.

That means the fate of gay and bisexual workers is likely to rest with Justice Anthony Kennedy, a conservative who often provides the fifth vote in favor of gay rights. Whether Kennedy does so in this case remains to be seen—though the lopsided vote in Hively should be an encouraging sign for supporters of LGBT rights.

This blog originally appeared in ThinkProgress.org on April 4, 2017. Reprinted with permission.

Ian Millhiser is the Justice Editor at ThinkProgress. He is a skeptic of the Supreme Court, hater of Samuel Alito, and a constitutional lawyer of ill repute. Contact him at  [email protected].


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Tinder on Fire: How Women in Tech are Still Losing

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  A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.”  These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen.  Last month, Wolfe brought suit against Tinder for sex discrimination and harassment.  Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse.  Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “sluty.”

The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience.  Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference.  After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats.  She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”

In 2012, junior partner Ellen Pao filed a sexual harassment suits against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances.  And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry.  An online video game was even released in which users could “beat up” Sarkeesian.  These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.

There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution.  These laws provide strong protections against gender harassment in employment and other contexts.  So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?

It doesn’t help that tech companies are also notorious for their lack of diversity.  This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white.  The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn. Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade.  These numbers confirm what the stories reflect — that this industry truly is “a man’s world.”  And this needs to change.

Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive.  Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.”  While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected.  Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.

Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech.  This also needs to change.  Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.

But change will not be achieved without help from sources outside the industry.  Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry.  We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance.  If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to change the “guy culture.”

The tech world doesn’t have to be a man’s world, and it shouldn’t be.

 This blog originally appeared in CELA Voice on July 25, 2014. Reprinted with permission. http://celavoice.org/author/lisa-mak/.
About the Author: The authors name is Lisa Mak. Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.

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