Employees Can Be Fired for Being LGBTQ in 26 States. Will the Supreme Court Make That Even Worse?
S E E D E D C O N T E N T
The Supreme Court on Friday will consider taking three cases that could determine whether an employer can legally discriminate against employees for being LGBTQ. If the Court agrees to hear some, or all, of the petitions, it will be testing both the strength of employment discrimination law under Title VII and retired Supreme Court Justice Anthony Kennedy’s LGBTQ rights legacy.
Two cases, with two different outcomes in the lower courts, present the Court with the question of whether the Title VII of the Civil Rights Act of 1964 prohibitions on discrimination “because of sex” include discrimination on the basis of a person’s sexual orientation. In Altitude Express Inc. v. Zarda , the U.S. Court of Appeals for the Second Circuit held that Title VII does protect an employee from being fired because they are gay. In that case, Donald Zarda, a skydiving instructor, sued Altitude Express, claiming the company fired him for being gay and failing to conform to the
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Just looking at the plain language of anti-sex discrimination legislation, I think it's easy to come to the conclusion that it doesn't cover sexual orientation. However, in application we end up discriminating against orientation because we are discriminating against sex. Let me explain:
In this case, the plaintiff was fired because he engaged in sexual joking that allegedly would have been ok if he were straight. i.e. he was joking with women about how they weren't going to be in a sexual situation because he wasn't attracted to them. If he were a straight female, we know he could make the same joke, but in his case, he can't make the joke because he's male. He also isn't allowed to make the joke because he's gay, but the result is the same. He ends up being discriminated against because he's gay.
One thing I am curious about is what their response to the complaint looked like. This case is just about a motion for summary judgment (MSJ) on one point - the Title VII question. It may well be that he was fired for making sexual jokes and they would have fired anyone for making those jokes, but that defense requires examining evidence, taking depositions, etc. It's quicker and cheaper if they can defeat the suit just by saying the ground for the suit doesn't apply as a matter of law.
So they could well lose the MSJ but the fight will continue.
I have a feeling this Supreme Court, especially with the recent additions, is going to be less citizen friendly, more corporate friendly, more subservient to the desires of wealth and interpreting The Constitution as more aligned with interpretations from a century and a half ago.