Trump Appointee Gorsuch Plays Coy In LGBTQ Employment Rights Case

From today’s NPR News Online:

The retirement of Supreme Court Justice Anthony Kennedy loomed large over arguments at the court Tuesday in a set of cases testing whether employers are free to fire gay and transgender employees. Kennedy, a Reagan appointee, was the author of every major gay rights decision for more than two decades. His absence, and the presence of two new Trump appointees, could very well determine how these cases are decided, who wins, and who loses.

Justice Brett Kavanaugh, who replaced Kennedy, asked only one question during two hours of argument Tuesday. Instead, it was Justice Neil Gorsuch, the other Trump appointee, who was the focal point.

Gorsuch, an adamant advocate for reading the text of a statute literally, admitted to a bit of a conundrum. Addressing ACLU lawyer David Cole, he said, “Assume for the moment … I’m with you on the textual evidence,” but “it’s close … very close.” The words of Title VII of the 1964 Civil Rights Act bar employment discrimination “because of sex,” or “based on sex.”

Gorsuch seemed to be agreeing that language would appear to cover gay and transgender employees. But, he then asked whether a justice should “take into consideration the massive social upheaval that would” ensue from such a decision. Wouldn’t it be better to let Congress do it?

Cole replied that federal courts have been finding it illegal to discriminate against transgender employees for 20 years, and “there’s been no upheaval.” Dress codes and sex-segregated restrooms “have not fallen,” he observed, adding there has been no tumult.

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Can Someone Be Fired for Being Gay? The Supreme Court Will Decide

From today’s New York Times:

The Supreme Court has delivered a remarkable series of victories to the gay rights movement over the last two decades, culminating in a ruling that established a constitutional right to same-sex marriage. But in more than half the states, someone can still be fired for being gay.

Early in its new term, on Oct. 8, the court will consider whether an existing federal law, Title VII of the Civil Rights Act of 1964, guarantees nationwide protection from workplace discrimination to gay and transgender people, even in states that offer no protections right now.

It will be the court’s first case on L.G.B.T. rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions. And without Justice Kennedy, who joined four liberals in the 5-to-4 ruling in the marriage case, the workers who sued their employers in the three cases before the court may face an uphill fight.

“Now that we don’t have Kennedy on the court, it would be a stretch to find a fifth vote in favor of any of these claims that are coming to the court,” said Katherine Franke, a law professor at Columbia and the author of “Wedlocked: The Perils of Marriage Equality.”

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The Supreme Court May Erode Decades of Wins for LGBT Worker Rights

From today’s Bloomberg Business Week:

For two decades, most of the LGBT movement’s highest-profile victories have come at the U.S. Supreme Court. In 2003 the justices issued a ruling legalizing gay sex that dissenting conservative Justice Antonin Scalia warned would set the stage for nationwide legalized gay marriage. Within 12 years, his prediction was realized. The court made marriage equality the law of the land—reflecting, and also accelerating, a sea change in straight Americans’ views and treatment of their LGBTQ family members and neighbors.

But next year the high court could deal LGBTQ people a painful blow: wiping out lower-court rulings that shield them from getting fired for who they are.

In a trio of cases this coming term—involving a child welfare worker, a skydiving instructor, and a funeral director—the Supreme Court will hear arguments on whether it’s legal for bosses to discriminate against LGBT employees. Contrary to what many Americans now assume, no federal law explicitly prohibits firing workers simply for being gay or transgender. Nor do the laws of most states—including some populous ones such as Texas and Ohio. (Only 21 states and Washington, D.C., have laws that explicitly prohibit private companies from firing workers for being gay or trans; another one restricts anti-gay firing but not anti-trans dismissals.)

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SCOTUS To Hear Cases On Title VII Protections For LGBTQ Employees

From today’s NPR News Online:

The Supreme Court has accepted three cases that ask whether federal anti-discrimination laws should apply to sexual orientation and gender identity in the workplace, putting the court on track to consider high-profile LGBTQ issues after its next term begins this fall.

Two of the cases — Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda — were consolidated because both include claims that employers discriminated on the basis of sexual orientation. A third — R.G. & G.R. Harris Funeral Homes v. EEOC — involves the question of whether existing discrimination laws apply to transgender workers.

The Supreme Court granted petitions for writs of certiorari for the three cases Monday morning, adding them to their workload for the term that will start in October — meaning any decisions and opinions will emerge in the runup to the national election in 2020.

But the court also set limits as it accepted the cases. As the court’s order list states, the scope of the court’s review of the Harris Funeral Homes case is limited to only question “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping” under the 1989 decision in the Price Waterhouse v. Hopkins case.

The Supreme Court’s order refers to Title VII, the part of the Civil Rights Act of 1964 that prohibits employers from discriminating on the basis of race, color, religion, sex and national origin. In recent years, lower federal courts have disagreed on whether the same protections should apply to people based on their sexual orientation and gender identity. That divide can be seen in the trio of cases now up for review.

“In two of the cases, lower courts sided with the plaintiffs,” NPR’s Leila Fadel reports for our Newscast unit, “one in Michigan where a transgender woman was fired from her job at a funeral home based on her gender identity; another, out of New York where a skydiving instructor was allegedly fired because he’s gay. But in a third case in Georgia, a gay man who was fired from his job as a child welfare services coordinator lost.”

In that third case, the Court of Appeals for the 11th Circuit turned away an appeal from Gerald Lynn Bostock last summer. Even before Bostock’s appeal request was declined by the full panel, his attorneys already had asked the Supreme Court to weigh in.

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Title VII of Civil Rights Act Protects Gay Workers, Federal Appeals Court Rules

From today’s New York Times:

A federal appeals court in Manhattan ruled on Monday that federal civil rights law bars employers from discriminating based on sexual orientation.

The case, which stemmed from the 2010 dismissal of a Long Island sky-diving instructor, was a setback for the Trump Justice Department, whose lawyers found themselves in the unusual position of arguing against government lawyers from the Equal Employment Opportunity Commission.

The E.E.O.C. had argued that Title VII of the 1964 Civil Rights Act, which bars workplace discrimination based on “race, color, religion, sex or national origin,” protected gay employees from discrimination on the basis of sexual orientation.

But the Trump Justice Department took the position that the law did not reach sexual orientation, and said the E.E.O.C. was “not speaking for the United States.”

The Justice Department and Altitude Express, the instructor’s employer, could seek review of the decision by the United States Supreme Court, although neither party had any immediate comment on the ruling.

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Actresses—and Millions More Workers—Have No Federal Sexual Harassment Protections

From today’s Nation by Bryce Covert:

After the New York Times dropped its bombshell investigation into decades of sexual harassment perpetrated by film producer Harvey Weinstein, and the New Yorker followed up with allegations of not just harassment but sexual assault, dozens of women in Hollywood have come forward with stories about his harassment and abuse. But until these articles were published, Weinstein faced few repercussions for his behavior.

There are a number of reasons why most of these women may have decided against reporting what happened to them. Many actresses talked about their fear that Weinstein would exact retribution by blacklisting them in the industry—something some victims said they experienced simply for rebuffing his advances. They likely worried no one would believe them or take them seriously. One of the few women who did report his behavior to the authorities, Italian model Ambra Battilana Gutierrez, even wore a wiretap and caught Weinstein apparently admitting to assaulting her, only to watch Manhattan District Attorney Cyrus Vance Jr. drop her case over what he said was lack of evidence supporting a criminal charge.

But there’s another reason why actresses harassed by Weinstein may have been discouraged from reporting sexual harassment. Any who were working on a Weinstein film were almost certainly classified as independent contractors, not regular employees. And that means that the anti-discrimination and sexual harassment protections of federal law didn’t apply to them.

It’s a problem not just in Hollywood, but throughout the economy, in industries as diverse as real estate, trucking, technology, and home health care. And the problem is growing. As more companies classify their workers as independent contractors or push workers into nontraditional employment arrangements, an increasing number of people are at risk of having virtually no recourse for on-the-job harassment.

Workplace discrimination and harassment based on sex are prohibited under Title VII of the Civil Rights Act, which outlaws “employment practice[s] [that] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” If an employee feels she is being harassed at work, she can file a complaint with the Equal Employment Opportunity Commission, the first step in taking legal action. But the catch is she has to be an employee for Title VII protections to apply. Independent contractors, temp workers, and those employed by contracting companies are not covered under the law. “Title VII has to be related to employment,” explained Catherine Ruckelshaus, program director at the National Employment Law Project. Anyone who’s not a traditional employee can’t easily bring claims under it. “The more attenuated you get from an employment relationship, the harder it is under Title VII.”

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DOJ Says Title VII Law Doesn’t Protect LGBTQ Employees From Discrimination

From today’s New York Times by Alan Feuer

The Justice Department has filed court papers arguing that a major federal civil rights law does not protect employees from discrimination based on sexual orientation, taking a stand against a decision reached under President Barack Obama.

The department’s move to insert itself into a federal case in New York was an unusual example of top officials in Washington intervening in court in what is an important but essentially private dispute between a worker and his boss over gay rights issues.

“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department said in a friend-of-the-court brief, citing the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin.” “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”

The department filed its brief on Wednesday, the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, raising concerns among civil rights activists that the Trump administration was trying to undermine lesbian, gay, bisexual and transgender rights won under previous administrations.

The filing came in a discrimination case before the United States Court of Appeals for the Second Circuit involving Donald Zarda, a skydiving instructor. In 2010, Mr. Zarda was fired by his employer, a Long Island company called Altitude Express. Before taking a female client on a tandem dive, Mr. Zarda told the woman he was gay to assuage any awkwardness that might arise from his being tightly strapped to her during the jump. The woman’s husband complained to the company, which subsequently fired Mr. Zarda. Mr. Zarda then sued Altitude Express, claiming it had violated Title VII.

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