{"id":138656,"date":"2019-04-22T19:00:30","date_gmt":"2019-04-23T01:00:30","guid":{"rendered":"https:\/\/hill-kleerup.org\/blog\/?p=138656"},"modified":"2019-04-22T19:00:30","modified_gmt":"2019-04-23T01:00:30","slug":"scotus-takes-on-lgbtq-employment-and-title-vii","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2019\/04\/22\/scotus-takes-on-lgbtq-employment-and-title-vii.html","title":{"rendered":"SCOTUS takes on LGBTQ employment and Title VII"},"content":{"rendered":"

\"\"<\/a><\/p>\n

The Supreme Court has agreed to hear a combined set of cases, based on differing rulings in US Circuit courts, as to whether Title VII of the Civil Rights Act protects LGBTQ individuals from employment discrimination — specifically, in these cases, whether an employer can fire someone for being gay.<\/p>\n

The issue is whether Title VII of the federal Civil Rights Act of 1964, which prohibits sex discrimination, protects LGBT people from job discrimination. Title VII does not specifically mention sexual orientation or transgender status, but federal appeals courts in Chicago and New York have ruled recently that gay and lesbian employees are entitled to protection from discrimination. The federal appeals court in Cincinnati has extended similar protections for transgender people.<\/p><\/blockquote>\n

While it’s almost certainly true that the congressfolk who passed the Civil Rights Act 55 years ago gave no thought to it protecting LGBTQ folk (indeed, I suspect that, had that been mentioned during legislative debates they would have carved out an explicit suggestion), it would not be the first time the letter of the law has been used to give new meaning to the law as society has changed, as new applications have come up, etc.<\/p>\n

So, for example, Title VII has been used to prevent firings based on stereotypes regarding sex — regarding dress, hairstyle, behavior. “I fired her because she wanted to wear pants and I won’t have any pants-wearing women in my office” will get you in a load of trouble these days, because you are deciding to discriminate based on the sex of the worker and what you expect from them because of that. Or, put another way, if you would have a different criterion on what’s acceptable (wearing pants) from an employee based on their sex, e.g., only when it’s women<\/em> doing it, not\u00a0men,\u00a0<\/em>you are engaging in discrimination based on sex.<\/p>\n

Various courts have taken this precedent to say that singling out sexual orientation (for example) as a basis for firing is also discriminatory — “I fired him because he kissed a man and I won’t have any man-kissing men in my office” is a parallel construction, and if your restriction on kissing men is only when it’s\u00a0men<\/em> who do it, not\u00a0women,<\/em> then it’s discrimination based on sex.<\/p>\n

It’s a logical argument to me, but that “what would a congressman in 1964 have said” has also weighed on the various courts that have considered it. As SCOTUS takes up the challenge, how Trump’s two appointees, one of them very much an originalist, will weigh in on the cases is of particular interest.<\/p>\n

Of course, all of this could be easily resolved if Congress passed a law explicitly adding sexual orientation and gender identity to the protected classes under the Civil Rights Act. But that seems highly unlikely, given GOP control of both the Senate and, of course, the White House.<\/p>\n

The other wild card here is with the question — as it’s been so far ducked by SCOTUS — of whether “religious freedom” trumps such civil rights laws — allowing people with “sincere religious beliefs” to discriminate under the Civil Rights Act, most prominently against LGBTQ individuals, but also potentially based on sex, age, religion, etc. How\u00a0that<\/em> plays out will probably be an even more significant question.<\/p>\n

Do you want to know more?<\/em> Supreme Court to hear LGBT job discrimination cases | PBS NewsHour<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Is LGBTQ discrimination actually sexual discrimination? (I think so.)<\/p>\n","protected":false},"author":2,"featured_media":129850,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","_seopress_robots_follow":"","_seopress_robots_imageindex":"","_seopress_robots_snippet":"","_seopress_robots_primary_cat":"","_seopress_robots_breadcrumbs":"","_seopress_robots_freeze_modified_date":"","_seopress_robots_custom_modified_date":"","_seopress_robots_canonical":"","_seopress_social_fb_title":"","_seopress_social_fb_desc":"","_seopress_social_fb_img":"","_seopress_social_fb_img_attachment_id":0,"_seopress_social_fb_img_width":0,"_seopress_social_fb_img_height":0,"_seopress_social_twitter_title":"","_seopress_social_twitter_desc":"","_seopress_social_twitter_img":"","_seopress_social_twitter_img_attachment_id":0,"_seopress_social_twitter_img_width":0,"_seopress_social_twitter_img_height":0,"_seopress_redirections_value":"","_seopress_redirections_enabled":"","_seopress_redirections_enabled_regex":"","_seopress_redirections_logged_status":"","_seopress_redirections_param":"","_seopress_redirections_type":0,"_seopress_analysis_target_kw":"","_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[350,21,25],"tags":[1200,851],"class_list":["post-138656","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-civil-liberties","category-job-jollies","category-gay-stuff","tag-lgbtq","tag-scotus"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2016\/02\/p_30stk_supreme_court_1406125B15D.JPGimgmax=660.jpg","jetpack_sharing_enabled":true,"jetpack-related-posts":[{"id":51771,"url":"https:\/\/hill-kleerup.org\/blog\/2015\/07\/17\/the-eeoc-rules-that-sexual-orientation-discrimination-is-already-illegal.html","url_meta":{"origin":138656,"position":0},"title":"The EEOC rules that sexual orientation discrimination is already illegal","author":"***Dave","date":"Fri 17-Jul-15 8:20am","format":false,"excerpt":"In a 3-2 decision, the Equal Employment Opportunity Commission -- which oversees federal discrimination actions -- says that workplace discrimination on the basis of sexual orientation is covered by the Civil Rights Act of 1964's Title VII, barring discrimination based on sex.Which, after a moment of thinking, makes sense. If\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":133211,"url":"https:\/\/hill-kleerup.org\/blog\/2017\/04\/05\/seventh-circuit-rules-that-title-vii-prohibits-job-discrimination-against-gays.html","url_meta":{"origin":138656,"position":1},"title":"Seventh Circuit rules that Title VII prohibits job discrimination against gays","author":"***Dave","date":"Wed 5-Apr-17 7:21am","format":false,"excerpt":"The full panel ruled, 8-3, that the employers of the woman in question violated Title VII of the Civil Rights Act of 1964. (In so doing, it overturned an earlier 3-judge panel on the Circuit, as well as lower courts).Title VII doesn't address sexual orientation per se, and Congress has\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":134961,"url":"https:\/\/hill-kleerup.org\/blog\/2017\/10\/06\/jeff-sessions-says-okay-fire-transgender-workers.html","url_meta":{"origin":138656,"position":2},"title":"Jeff Sessions says it’s okay to fire transgender workers again","author":"***Dave","date":"Fri 6-Oct-17 2:49pm","format":false,"excerpt":"Because of course he did. Probably with a prayer on his lips and a song in his heart. The U.S. Department of Justice has reversed course on whether federal law banning sex discrimination in the workplace provides protections for transgender employees, saying in a memo that it does not. The\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2017\/10\/sessions.jpg?resize=350%2C200&ssl=1","width":350,"height":200},"classes":[]},{"id":138290,"url":"https:\/\/hill-kleerup.org\/blog\/2019\/03\/13\/the-equality-act-is-back-in-the-legislative-queue.html","url_meta":{"origin":138656,"position":3},"title":"The “Equality Act” is back in the legislative queue","author":"***Dave","date":"Wed 13-Mar-19 7:52pm","format":false,"excerpt":"But will Republican Senators have to pay any attention to it?","rel":"","context":"In "Church & State"","block_context":{"text":"Church & State","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law\/church-state"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2019\/03\/equality-flag.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2019\/03\/equality-flag.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2019\/03\/equality-flag.jpg?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2019\/03\/equality-flag.jpg?resize=700%2C400&ssl=1 2x, https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2019\/03\/equality-flag.jpg?resize=1050%2C600&ssl=1 3x, https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2019\/03\/equality-flag.jpg?resize=1400%2C800&ssl=1 4x"},"classes":[]},{"id":39576,"url":"https:\/\/hill-kleerup.org\/blog\/2013\/11\/05\/the-us-catholic-bishops-and-enda.html","url_meta":{"origin":138656,"position":4},"title":"The US Catholic Bishops and ENDA","author":"***Dave","date":"Tue 5-Nov-13 2:50pm","format":false,"excerpt":"ENDA (the Employment Non-Discrimination Act) \u00a0is a proposed law that would make it illegal for nonreligious employers to discriminate in hiring and firing based on sexual orientation or gender identity. \u00a0That's pretty much it -- nothing weird or bizarre about the mechanisms involved (we have plenty of other non-discrimination laws),\u2026","rel":"","context":"In "Church & State"","block_context":{"text":"Church & State","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law\/church-state"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2013\/11\/not-persecuted.jpg?resize=350%2C200&ssl=1","width":350,"height":200},"classes":[]},{"id":137817,"url":"https:\/\/hill-kleerup.org\/blog\/2019\/02\/14\/the-dire-menace-of-the-lgbtq-religion.html","url_meta":{"origin":138656,"position":5},"title":"The Dire Menace of the LGBTQ Religion","author":"***Dave","date":"Thu 14-Feb-19 9:43pm","format":false,"excerpt":"The article is somewhat lengthy, but it's simultaneously hilarious and appalling, detailing a bill in the Kansas state legislature that basically asserts that LGBTQ is a \"religion\" (a subset of secular humanism, which was deemed a religious faith by SCOTUS in the early 60s), and therefore state law cannot favor\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/138656","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/comments?post=138656"}],"version-history":[{"count":1,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/138656\/revisions"}],"predecessor-version":[{"id":138657,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/138656\/revisions\/138657"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/media\/129850"}],"wp:attachment":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/media?parent=138656"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/categories?post=138656"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/tags?post=138656"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}