Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Obergefell v. Hodges’

The Supreme Court hits pause on gay and lesbian rights

Monday, December 11th, 2017

For the second time in a week, the Supreme Court signaled on Monday that it may no longer be a friendly place for victims of discrimination on the basis of sexual orientation.

The Court announced Monday that it will not hear Evans v. Georgia Regional Hospital, a surprising decision given that the question presented in Evans — whether existing law banning discrimination “because of … sex” encompasses discrimination based on sexual orientation — is a subject of disagreement among federal appeals courts.

According to the Court’s own rules, the justices are especially likely to hear cases where “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” Maintaining the uniformity of federal law is one of the primary functions of the Supreme Court.

As a general rule, it is dangerous to overread the significance of the Court’s decision not to hear a particular case. Such denials of review are not decisions on the merits, and can sometimes reflect a quirky problem with an individual case — not that the justices are uninterested in resolving the issue presented by that case.

But the Court’s non-decision in Evans follows last week’s surprising oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where Justice Anthony Kennedy — the author of the Supreme Court’s landmark marriage equality decision — appeared unwilling to let the law treat homophobia as an evil akin to racism, sexism, or other forms of invidious discrimination.

Taken together, the two events suggest that Kennedy, who believes that all people have a fundamental right to marry, is not particularly interested in abolishing discrimination on the basis of sexual orientation writ large. Without Kennedy, moreover, the project of equality for the LGBTQ community is dead in the water at the Supreme Court.

A year-and-a-half ago, Kennedy’s marriage equality opinion in Obergefell v. Hodges seemed to suggest that gay rights litigators still had many significant victories ahead of themObergefell described sexual orientation as an “immutable nature.” And it highlighted the long history of harsh discrimination against people with same-sex attractions both by the government and private actors.

This language in the Obergefell opinion seemed significant because past Supreme Court decisions established that when a group has historically faced discrimination that bears “no relation to ability to perform or contribute to society,” and especially when they face such discrimination because of an “immutable” trait that they cannot control, any law which discriminates against that group must be treated with a great deal of constitutional skepticism.

A major purpose of the Fourteenth Amendment is to eradicate institutionalized racism and government discrimination that is similar in character to racism, and Kennedy’s Obergefell opinion strongly signaled that discrimination on the basis of sexual orientation meets this test.

Perhaps emboldened by these signals in Obergefell, the United States Court of Appeals for the Seventh Circuit held last April that the existing ban on sex discrimination by employers prohibits discrimination on the basis of sexual orientation. In an 8-3 decision joined by several Republican-appointed judges, the Seventh Circuit explained in Hively v. Ivy Tech Community College that discrimination against a lesbian employee is itself a form of sex discrimination. Being a woman attracted to women “represents the ultimate case of failure to conform to the female stereotype.”

On the day Hively was handed down, there was good reason to believe that the Supreme Court would follow the Seventh Circuit’s lead. Kennedy’s opinion in Obergefell suggested that he believes that discrimination on the basis of sexual orientation is both morally and legally similar to sexism. And eliminating private discrimination against gay, lesbian, and bisexual employees was the next logical step for LGBTQ rights litigators after their victory for marriage equality.

Now, however, that project is stalled. The Supreme Court’s decision not to take the Evans case leaves Hively in place, but it also leaves in place decisions in several other federal judicial circuits holding that it is perfectly legal to fire someone because they are gay. Kennedy’s questions in the Masterpiece Cakeshop case, moreover, suggest that he may even be willing to roll back existing protections for such workers.

At last Tuesday’s oral argument, Kennedy was outraged by a Colorado state commissioner who said — accurately — that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.” He also accused the state of not being “tolerant” or “respectful” of the religious beliefs of a baker who refused to serve a same-sex couple in violation of Colorado’s anti-discrimination law.

Kennedy, in other words, appeared to think that laws banning discrimination on the basis of sexual orientation must bend to the will of people who claim a religious justification for their prejudices — or, at least, that state officials who wish to enforce these laws must walk on eggshells to avoid offending people on the religious right.

Rather than extending civil rights protections to gay, lesbian, and bisexual workers throughout the country, Kennedy now appears more likely to roll back existing protections in states that already ban discrimination on the basis of sexual orientation. The momentum towards equality is currently paused, but it may soon move in reverse.

This article was originally published by Ian Millhiser on December 11, 2017. Reprinted with permission. 

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

Employment Equality - When is the Federal Government Going to get on Board with LGBT Employment Rights? A Lawyer’s Look at State & Federal Workplace Protections

Thursday, January 14th, 2016

BraniganRobertsonThe topic of LGBT rights has dramatically increased in the last few years. Most have heard about the recent Supreme Court case, Obergefell v. Hodges, which legalized same-sex marriage throughout the nation. Whether on the legislative floor or in the courthouse, there is no question that LGBT rights have really come a long way in America in the last few years. But what about in the workplace? What employment law protections are there against LGBT discrimination at work?

What many people do not know is that workplace protections for LGBT employees vary by state jurisdiction. This can be confusing as many people may assume that the law is uniform throughout the nation. It’s not. Simply put, federal and state laws may differ as to whether an employer may discriminate against an employee because of his or her sexual orientation.

Federal Law Does Not Ban Sexual Orientation Discrimination

Federal law is not very good at protecting LGBT employees in the workplace. The main federal anti-discrimination law is Title VII. It doesn’t ban discrimination based on sexual orientation. Some federal courts have held that discrimination by an employer based on an employee’s sexual orientation is not a violation of federal law. See Hamner v. St. Vincent Hosp. & Health Ctr., Inc. (7th Cir. 2000) and Bibby v. Philadelphia Coca Cola Bottling Co. (3rd Cir. 2001) (“It is clear…that Title VII does not prohibit discrimination based on sexual orientation.”) What is really interesting is that Title VII prohibits an employer from discriminating against an employee based upon their “sex,” but some courts have interpreted that to refer only to their biological gender, not someone’s sexual orientation or identity.

However, just because an LGBT employee is not be protected at the federal level does not mean they are out of luck. Most states have some sort of protection banning discrimination in the workplace based on an employee’s sexual orientation. For example, California explicitly bans employment discrimination based on “sexual orientation,” “gender identity,” and “gender expression.” See CA Government Code § 12940. Case law supports this as well.

State Law is Better for LGBT Employment Rights (Depending on Where You Live)

Complicating the matter, there are still a few states (eighteen in total) that have no state laws whatsoever prohibiting LGBT discrimination in the workplace. To make it even more confusing, some states prohibit discrimination in all workplaces (public and private) but some states, such as Alaska and Arizona, only prohibit public employers from discriminating based on sexual orientation.

The good news is that there is an increasing amount of states joining the movement of implementing laws that are very favorable to LGBT employees. From 2012 until present, three states have enacted laws prohibiting discrimination in the workplace based on sexual orientation. I’m an lawyer in California which has had laws protecting LGBT employees in the workplace since the early 1990s. So why is the federal government not on board with most of these states yet?

Answering that question is pretty difficult as there are so many factors to be considered as to why the federal government has not followed the majority of the states yet. But what can be said is this; in today’s legislative environment, the federal government usually does not implement controversial or hotly debated law until an overwhelming majority of the states have already done so. Rather than anger many states by forcing them to adopt a law they dislike, the federal government will sit on the sidelines until enough political pressure has built up that Congressional leaders and the Supreme Court align with the states. For example, the Supreme Court did not legalize same sex marriage until thirty-seven states had already done so and public opinion swung towards legalization. So if that is the case then when is the federal government going to implement favorable laws protecting LGBT employees in the workplace?

The Momentum is Growing for Federal Protection

As stated above, most states offer some level of protection to LGBT employees, but some states provide a higher level or protection than others. So arguably, there is not yet an overwhelming majority of states that offer LGBT employees total protection like that of the laws in California. But every year a state or two adopts favorable LGBT employment laws. Thus, assuming a state or two adopts favorable laws every year we may see some major changes to federal law within the next decade protecting LGBT employees.

Moreover, aside from statutory changes, the Equal Employment Opportunity Commission has taken a stance on the issue. In 2015, the EEOC released a statement that federal law prohibits an employer from discriminating against an employee based on his or her sexual orientation because it is a type of sex discrimination. Considering that the EEOC is the federal administrative body that handles employment claims, this is a huge step in the right direction. However, such statements made by the EEOC are not binding on the federal courts or the legislature, but they can influence a court or the legislature to take a certain stance.

At the end of the day, LGBT rights in the workplace have come a long way from what they used to be only a few decades ago. In the span of only a couple decades, most states have adopted some sort of law protecting LGBT employees, and almost half of the states have total protection for LGBT employees. Things are looking good for the LGBT community when it comes to protection in the workplace, but there is still some work to be done. In light of Obergefell v. Hodges and the most recent stance taken by the EEOC, I would not be surprised if in the next decade or so, whether it be by the legislature or a Supreme Court ruling, that the federal government amend Title VII to offer more protection to LGBT employees in the workplace.

Branigan Robertson is an employment attorney in Orange County, California. He is a member of the California Bar, California Employment Lawyers Association, and the National Employment Lawyers Association. He exclusively represents employees (the little guy/gal!) in lawsuits against employers and focuses his practice on discrimination and wrongful termination. Mr. Robertson attended Chapman University School of Law and was President of the Employment Law Society.

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