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Law of the Land: Civil Rights Act of ’64 Protects LGBTQ Workers, Too

June 15, 2020

By Steve Wishnia

WASHINGTON—In a landmark 6-3 decision June 15, the Supreme Court ruled that the Civil Rights Act of 1964’s ban on employment discrimination on the basis of sex extends to sexual orientation and gender identity.

“The LGBTQ community is now freer under the protection of a law fought for and won by the Black civil rights movement a generation ago, another reminder that we are all in this together.” — AFL-CIO President Richard Trumka 

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Justice Neil Gorsuch wrote, joined by Chief Justice John Roberts and the four members of the Court’s liberal bloc. “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The case, Bostock v. Clayton County, reversed an 11th Circuit Court of Appeals ruling that Gerald Bostock, a child-welfare advocate in the Atlanta suburbs, had been legally fired after his bosses found out he’d played in a LGBTQ softball league, because Title VII of the Civil Rights Act did not cover sexual orientation. It affirmed appeals-court decisions in favor of the late Donald Zarda, a New York skydiving instructor fired after he told a woman who objected to being strapped tightly to him that she shouldn’t worry because he was “100% gay,” and the late Aimee Stephens, a Michigan funeral-home worker fired after she announced that she was transitioning from male to female.

“Gay rights are workers rights!” the Retail, Wholesale and Department Store Union exulted on Twitter after the decision. “This is a great victory for working people,” the International Association of Machinists chimed in. 

“The LGBTQ community is now freer under the protection of a law fought for and won by the Black civil rights movement a generation ago, another reminder that we are all in this together,” AFL-CIO President Richard Trumka said in a statement.

“This is a vital step, particularly as the Trump administration works to dismantle rights and freedoms from LGBTQ people in so many other ways,” said American Federation of Teachers President Randi Weingarten. “Let us rejoice, for a moment, in this important victory for every gay and transgender person who can now get up and go to work every day without the cloak of fear that their employer can fire them simply for being themselves.”

The decision’s logic should extend to prohibit discrimination in education and health care, said National Education Association President Lily Eskelsen Garcia. Both teachers’ unions filed amicus briefs supporting Bostock, Zarda, and Stephens, as did the American Federation of State, County and Municipal Employees. AFSCME President Lee Saunders called the decision “long overdue.”

“The Supreme Court landed squarely in the 21st Century today by providing protections for LGBTQ working people who for too long have lived with fear that they could lose their job over their identities, no matter their accomplishments,” said Texas AFL-CIO President Rick Levy and Secretary-Treasurer Montserrat Garibay. “In Texas, where a ban on sodomy unaccountably remains on the books even though it can’t be enforced, today’s cases provide a measure of justice and an important step toward equal workplace rights for all.”

Justice Gorsuch argued that it was impossible to discriminate against homosexual or transgender employees “without discriminating against that individual based on sex.” 

“An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women,” he wrote. 

In dissent, Justices Samuel Alito and Clarence Thomas accused the majority of a “brazen abuse of our authority to interpret statutes.” 

“There is not a shred of evidence,” they argued, that when Congress enacted Title VII of the Civil Rights Act, it intended to bar discrimination on the grounds of sexual orientation or gender identity. In 1964, they noted, homosexuality was considered a “sexual deviation,” and “sodomy,” same-sex oral or anal sex, was illegal in every state but Illinois. Homosexuals were banned from immigrating to the U.S.; they were denied security clearances and prohibited from serving in the military; federal agencies were allowed not to hire them; and all states had laws barring gay and lesbian teachers. 

“An employer can have a policy that says: ‘We do not hire gays, lesbians, or transgender individuals,’” Alito and Thomas declared. It might be wrong, they added, but it is no more discrimination on the basis of sex than it would be to fire a woman who’d been caught stealing.

“We are judges, not Members of Congress,” Justice Brett Kavanaugh wrote in a separate dissent. “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”

“Rather than suggesting that the statutory language bears some other meaning,” Justice Gorsuch responded, “the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text.”

Ironically, the ban on discrimination on the basis of sex was not included in the Civil Rights Act as a women’s-rights measure. It was introduced as a poison-pill amendment by House Rules Committee chairman Rep. Howard Smith (D-Va.), a hardline segregationist who joked about receiving a letter from a Nebraska woman complaining that the government’s engaging in “wars which killed off a large number of eligible males” had created a “surplus of spinsters.” Other Southern segregationists argued that the provision was necessary to prevent employers from discriminating against white women in favor of blacks.  

Rep. Martha Griffiths (D-Mich.), one of only 12 women in the House, angrily responded that the jokes about the issue removed any doubt that “women were a second-class sex.” The provision passed by a relatively narrow margin, 168-133, and Griffiths went on to be lead House sponsor of a constitutional amendment that would have guaranteed men and women equal rights if it had been ratified by 38 states.

“Whatever his reasons, thanks to the broad language Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’ at the time of the law’s adoption,” Justice Gorsuch wrote, citing court rulings against “help wanted male” and “help wanted female” ads, sexual harassment of men, and discrimination against mothers of young children.

June 15, 2020

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