About half of the states, including California, have state laws that protect people from job discrimination based on sexual orientation and, in many cases, transgender status. But in the rest, the LGBTQI community is not protected from workplace discrimination by state law.
That said, many experts have long argued that federal law prohibits job discrimination against the LGBTQI community. In fact, it is the position of the Equal Employment Opportunity Commission (EEOC) that Title VI of the Civil Rights Act of 1964 protects people from workplace discrimination based on sexual orientation, gender identity and gender expression.
The EEOC bases its conclusion on a series of decisions in the federal courts and from the U.S. Supreme Court. For example, in Oncale v. Sundowner Offshore Servs., the Supreme Court held that Title VII prohibits same-sex sexual harassment. In Price Waterhouse v. Hopkins, it held that employers may not discriminate against someone who doesn’t comport with traditional gender stereotypes.
This week, the Supreme Court is hearing a set of cases that could determine whether the EEOC’s interpretation will prevail. The Trump administration has filed briefs on behalf of the defendants, arguing that Title VII does not prohibit discrimination against people for their sexual orientation or transgender status. It argues that the lawmakers who wrote the law only meant for “sex” to refer to a person’s status as a male or female.
The plaintiffs, however, argue that sexual orientation and gender identity are fundamentally part of someone’s sex because the two concepts cannot even be defined without reference to sex.
Playing in a gay softball league considered ‘unbecoming’
One of the cases the Supreme Court will hear involves a Georgia man who worked for Clayton County for a decade helping abused and neglected children. His job was going extremely well, he says, until he joined a gay softball league on his own time. Shortly afterwards, he was fired for “conduct unbecoming a county employee.”
The county disputes this was the reason for his firing but argues that Title VII would allow it to dismiss him for being gay. Therefore, it argues that the gay man should not be allowed to sue for discrimination at all.
In the past, the Supreme Court has gone beyond the exact words of federal statutes and ruled that they can protect concepts that are drawn from the law. For example, it ruled that firing someone for marrying a person of another race is race discrimination.
“Statutory prohibitions,” wrote conservative justice Antonin Scalia in 1998, “often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”