Watershed Moment Will Decide Whether LGBTQ Americans Can be Legally Fired Because of Who They Are

WHAT’S AT STAKE BEFORE THE SUPREME COURT ON OCTOBER 8

On Tuesday, October 8, 2019, the U.S. Supreme Court of the United States will hear three cases that ask whether or not to strip away protections for LGBTQ people under Title VII of the Civil Right Act’s prohibitions on sex discrimination. The employers in these cases are asking the Supreme Court to reverse the rulings of the Equal Employment Opportunity Commission (EEOC) and instead find that it is perfectly legal under federal law to fire workers because they are LGBTQ.

These three cases are just as significant as cases that moved marriage equality forward. First, the cases will determine whether LGBTQ people are protected under federal nondiscrimination law, or whether employers will have a right to discriminate. If the Court rules that LGBTQ people are not protected by existing federal workplace protections, anti-LGBTQ opponents will rapidly use the same legal reasoning to attempt to overturn critical federal protections in housing, healthcare, credit, education, and more. In short, LGBTQ people could soon find themselves living in a nation where federal law says it is legal for them to be denied a job, fired, discriminated against at school, denied a loan, rejected by a doctor, and evicted from an apartment, simply because they are LGBTQ.

Tomorrow at 9:00 AM, GLAAD will join other LGBTQ and social justice organizations outside of the Supreme Court to speak out against eliminating protections for LGBTQ people and against granting employers the right to discriminate.

“The stakes for hard-working LGBTQ Americans could not be higher,” said GLAAD President and CEO Sarah Kate Ellis. “These cases will not only determine whether companies can legally fire someone just for being LGBTQ, but whether our community will face legal discrimination throughout all aspects of daily life. American values of fairness and equality are at stake. All fair-minded Americans should be watching these cases and loudly letting our U.S. Supreme Court Justices know that the public is against the right to discriminate.”
 

AS IT STANDS: WORKPLACE PROTECTIONS FOR LGBTQ AMERICANS

LGBTQ Americans lack explicit workplace protections in 26 states today. According to the Movement Advancement Project (MAP), just 22 states and the District of Columbia explicitly protect LGBTQ employees from discrimination in the workplace, with 21 states and D.C. protecting transgender Americans. Two states (Michigan and Pennsylvania) do not have explicit protections, but human and civil rights commissions have stated that the state’s existing protections against sex discrimination include protections for both sexual orientation and gender identity. 
 

THE PRESENTED CASES

Bostock v. Clayton County, Georgia: After more than a decade of experience and following numerous accolades as a welfare services coordinator for Clayton County Juvenile Court System, Gerald Bobstock joined an extra-curricular gay softball league, which drew criticisms from his work colleagues and an internal audit of his work. Bostock was terminated from his job after his department found out he is gay. Buckley Beal, LLP is representing him.

Altitude Express v. Zarda: Donald Zarda was a gay man who worked for a skydiving business on Long Island, New York. Zarda told a woman who he doing completed a tandem skydive with that he was gay. After the dive, Zarda’s boss fired him. Last year, the full Second Circuit Court of Appeals ruled that discrimination based on sexual orientation is a form of discrimination based on sex that is prohibited under Title VII. Tragically, Zarda passed away unexpectedly, but his sister and former partner are continuing the case on behalf of his estate. The ACLU represents Don’s estate as co-counsel with N.Y. lawyer Greg Antollino and with Pam Karlan of the Stanford Law School Supreme Court Litigation Clinic.

R.G. & G.R. Harris Funeral Homes v. EEOC: Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. She informed the funeral home’s owner that she is transgender and planned to come to work as the woman she is. The business owner fired her, saying it would be “unacceptable” for her to appear and behave as a woman. She filed a complaint with the Equal Employment Opportunity Commission, which sued the funeral home. The Sixth Circuit Court of Appeals ruled in March 2018 that when the funeral home fired her for being transgender and not conforming to the funeral home’s “preferences, expectations, or stereotypes” for women, it violated Title VII, the federal law prohibiting sex discrimination in employment. In July, lawyers representing the funeral home asked the Supreme Court to take up the case. Stephens’ legal team is comprised of the EEOC and ACLU.
 

HOW THE DECISION COULD PLAY OUT

• Even if the Supreme Court rules in favor of the LGBTQ plaintiffs, the work would be far from over. The U.S. Senate must still take up and pass the Equality Act to install across-the-board protections for LGBTQ Americans – including in housing, public accommodations and government programs. The Equality Act passed the House of Representatives in May 2019.
• The cases are about whether companies can legally fire someone for being LGBTQ, but, on a deeper level, these cases will have other ramifications including:
  • Whether LGBTQ people will have equal opportunity or face inferior legal protections across wide swaths of federal law.
  • Whether the federal government will strip away the rights of transgender people across federal law and move another step closer to eradicating transgender people from federal law by only recognizing people based on the sex assigned at birth
  • Implications for whether or not employers can engage in sex-stereotyping. These cases are about whether it is okay for employers to tell women what they can and can’t wear and how they can and can’t act. The cases may undo decades of case law and provide protections to companies that sex stereotype.
• If the Supreme Court rules against LGBTQ people, it will give the President and anti-LGBTQ groups and people in power license to take even more dangerous actions against LGBTQ people, including denying health care or kicking people out of their homes for being LGBTQ. 
   

U.S. SUPREME COURT JUDGE TO WATCH

Following the surprise retirement of former Supreme Court Justice Anthony Kennedy – who frequently ruled in favor of LGBTQ equality, the United States Supreme Court has shifted more conservative – prompting unease within the LGBTQ community.

Chief Justice John Roberts should be viewed as the possible moderate voice of the U.S. Supreme Court. Roberts’s approach to the Chief Justice position has been about protecting the reputation of the nation’s highest court, and he has shown his willingness to abide by public opinion and precedent set by the Court. The prime example is Roberts’s historic opinion in favor of the Affordable Care Act in 2012. Roberts also refused to issue an opinion on a case about whether LGBTQ couples should be legally allowed to add their names to a child’s birth certificate, just two years after his dissent in the historic Obergefell v. Hodges marriage equality case in 2015.
 

THE ALLIANCE DEFENDING FREEDOM: WHO THEY ARE

The Alliance Defending Freedom (ADF) is representing R.G. & G.R. Funeral Homes, the company that fired Aimee Stephens for being transgender.

The ADF has been designated as a hate group by the Southern Poverty Law Center. ADF has supported criminalization of gay and lesbian people in the U.S. and abroad, and defended — unsuccessfully — European laws requiring the sterilization of transgender citizens seeking recognition of their preferred gender. More information here: www.splcenter.org/fighting-hate/extremist-files/group/alliance-defending-freedom

Media reporting on the cases should note that ADF is not an employment law firm or a Christian organization, rather ADF is an organization based in Arizona that repeatedly works on cases that would harm LGBTQ people. 

The ADF recently sent out an e-mail ask for donations that includes myths and inaccurate talking points.

You can see the email here.

ADF MYTH 1 (as seen in their email to supporters): These cases would replace “sex” with “gender identity” in federal law.

REALITY 1: These cases are about whether companies can gain a right to discriminate and legally fire someone for being LGBTQ. These cases will determine whether LGBTQ people will continue to have protections under federal nondiscrimination law, or whether it will be legal under federal law for employers to fire someone for being LGBTQ.

ADF MYTH 2: “LGBTQ activists are ‘attempting to rewrite the law.’”

REALITY 2: From marriage equality to hates crimes to transgender rights, anti-LGBTQ activists have used the tired myth that inclusion is really “redefinition.” LGBTQ Americans are simply asking for protections against discrimination based on who they are and to be treated fairly while they are at work.

ADF MYTH 3: “The EEOC…imposed this view on [Tom Rost and his business, R.G. & G.R. Harris Funeral Homes] in its efforts to punish him!”

REALITY 3: The Equal Employment Opportunity Commission (EEOC) is an agency within the executive branch of government — currently under the Trump Administration. The agency is responsible “for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee.” This includes race, sex (sexual orientation and gender identity), national origin, age, disability, or genetic information. The EEOC has consistently ruled that employers cannot fire someone simply because they are LGBTQ. This is not a “punishment,” but rather an exemplification of the core function of the EEOC, that is, to ensure workers do not face discrimination simply because of who they are.

Many federal courts have also affirmed LGBTQ Americans are protected under Title VII of the Civil Right Act’s prohibitions on sex discrimination.

ADF MYTH 4: “A change like this [a ruling that employers may NOT legally discriminate] would cause chaos for American businesses — and everyone who works for one.”

REALITY 4: More than 200 major businesses in the United States submitted an amicus brief calling for the U.S. Supreme Court to declare LGBTQ Americans as protected from workplace discrimination. LGBTQ people are already explicitly protected against employment discrimination in over 20 states—and under federal law by the EEOC.
 

EXPERTS TO INTERVIEW AND ADDITIONAL RESOURCES

The ACLU has experts and spokespeople available to discuss their work on these cases. Chase Strangio, a Deputy Director for Transgender Justice at the ACLU and a nationally recognized expert on transgender rights, released a short video explaining why these cases are so significant. Email [email protected] to schedule an interview with ACLU spokespeople.

GLAAD President and CEO Sarah Kate Ellis is available to speak from New York. GLAAD can also put journalists in touch with advocates who will be on-the-ground at the Supreme Court as well as LGBTQ Americans who have experienced employment discrimination outside of the cases before the Supreme Court. Email [email protected] for more information. 

Several pieces of information in this document were repurposed from information released by ACLU, Freedom for All Americans, the National Center for Lesbian Rights, and the LGBTQ Task Force. 

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