WHERE ARE WE four years after the U.S. Supreme Court decided that marriage for same-sex couples was a Constitutional right? On the employment front, there is still no federal law that explicitly prohibits workplace discrim-ination against LGBT people. Consequently, the American workplace constitutes a stubborn holdout in the march toward LGBT equality, a region of life where homophobia can still rear its ugly head.
Although Title VII of the Civil Rights Act of 1964 bars employers from engaging in discrimination on the basis of an employee’s race, color, religion, sex, or national origin, courts and legislatures have been split over whether these protections extend to LGBT workers. Consequently, there is no uniform federal law that prohibits discrimination on the basis of sexual orientation and gender identity in the workplace. Instead, there is a complex patchwork of antidiscrimination laws and protections for LGBT workers from various sources leading to major geographic inequalities and confusion.
However, the U.S. Supreme Court recently announced that it will hear three cases to settle whether Title VII safeguards LGBT people from workplace discrimination, with decisions likely to be issued in June 2020.
Although the hope is that the Court will provide much-needed resolution to this issue, the concern is that its current makeup will shift the prior Court’s forward-leaning majority in favor of LGBT rights into reverse. If so, current Title VII rulings providing protection from discrimination to LGBT employees may be at risk.
While there is no federal law that provides employment discrimination protections based on sexual orientation, advocates for LGBT equality argue that the ban on sex discrimination in Title VII applies to LGBT employees. This argument asserts that firing, harassing, failing to promote, or otherwise discriminating against an employee based on his or her LGBT status is a form of sex stereotyping and thus of sex discrimination.
Although some state and local governments prohibit discrimination based on sexual orientation and identity, there remain numerous states where an employee can be legally fired based on his or her LGBT status. The Williams Institute at UCLA estimates that about half of the 8.1 million LGBT workers in the U.S. live in states that do not provide protection based on sexual or gender orientation. In the private sector, the vast majority of Fortune 500 companies extend legal protection to LGBT employees, but many smaller companies do not. Moreover, despite Supreme Court jurisprudence providing an expansive view of “sex,” the federal appellate courts are split, along with federal agencies, regarding whether LGBT employees are entitled to workplace protection. This absence of uniform laws has prevented consistent legal outcomes and applications for employers and employees alike and undermined advancements in LGBT rights.
William Murphy, J.D., and Sejal Singh, J.D., serve as full-time faculty of the Division of Criminal Justice, Legal Studies, and Homeland Security in the College of Professional Studies at St. John’s University. Their research includes underexplored issues in employment and labor law, tension between new technologies and the law, and experiential learning.