USA: Landmark Supreme Court decision rules that employers cannot discriminate against LGBTQ+ workers

On 15 July 2020, the US Supreme ruled that employers who terminate workers' employment on account of their sexual orientation or gender identity are in breach of civil rights laws. The case centred on Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex, and whether this applies to LGBTQ+ workers. In a 6-3 decision, the Supreme Court said federal law, which prohibits discrimination based on sex, should be understood to also include sexual orientation and gender identity. 

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16 June 2020

Concern raised over US Supreme Court LGBTQ+ decision not applying to one in six Americans who work in the smallest companies

Author: Erik Larson & Jeff Green (Bloomberg), via The Washington Post

“Supreme Court LGBT decision leaves out 1 in 6 American workers”, 16 June 2020

The U.S. Supreme Court’s landmark decision holding that employers can’t discriminate against workers based on their sexual orientation or gender identity has a glaring loophole: It doesn’t apply to small businesses that employ as many as one in six Americans…, [specifically] companies with fewer than 15 employees. Nor did the decision address…whether LGBTQ people can be refused access to housing or denied services from businesses including restaurants or movie theatres, and whether discrimination is justified by religious beliefs.

The exclusion for smaller companies was “one of several subtleties that got lost in the headlines given the significance of the decision, which is certainly a landmark,” said Jon Nadler…, Philadelphia-based lawyer who represents businesses in employment litigation. Among the Fortune 500…, Monday’s decision will make life easier…because it assures their LGBTQ employees will have the same federal protections no matter where they are hired or transferred…

[However]…, LGBTQ Americans employed by the smallest companies in more conservative states may find themselves out of luck. “There’s always been a special kind of place for small businesses in the legislative process, but I don’t understand how that protective spirit can translate in any way to allowing them to discriminate against employees based on who they love or what gender they identify with”, [Moe Vela, [former]…senior advisor on LGBTQ affairs to former Vice President Joe Biden].

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15 June 2020

US Supreme Court opens the door for larger companies to face lawsuits over discriminatory policies, say LGBTQ+ activists

Author: Noam Scheiber, The New York Times

“Gay rights ruling pushes workplace dynamic already in motion”, 15 June 2020

Even before the ruling on Monday, employers were moving toward non-discrimination on the basis of sexual orientation and gender identity, prompted by state laws, significant [Equal Employment Opportunity Commission] rulings, and federal appellate decisions. Title VII of the [1964] Civil Rights Act...., [and] its determinations..., [made] the outcome in many jurisdictions...far from clear. As a result, many employers decided that it was worth aggressively litigating…or trying to settle on favourable terms.

Ahead of the Supreme Court ruling, some 200 companies, including Google, Facebook, Hilton, Nike and the Walt Disney Company, signed a brief in support of the plaintiffs — making it one of the largest instances of employer support for employee plaintiffs in Supreme Court litigation. [M]any gay-rights proponents [have] predicted that large employers could [also] wind up as defendants in other cases. Sally Abrahamso [(law firm, Outten & Golden)]…, said [that]….such practices were often as prevalent at large employers as at smaller ones, and that her firm had heard from workers in recent years who had been fired from chains in [numerous] states...

[H]aving legal protection nationwide does not [guarantee] gay and transgender workers [will]...prevail, [with]…plaintiffs, [over all], still los[ing] most discrimination cases in federal court, though many…settle before trial. [However], “[now]’s a guarantee that if a person ends up going to court, their ability to bring a claim is not in doubt…, there’s no longer a barrier in front of the courtroom door”.

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14 June 2020

USA: Supreme Court rules employers cannot discriminate on the basis of gender identity & sexual orientation

Author: Dominic Rushe, Guardian (UK)

"US supreme court rules employers cannot discriminate against LGBTQ+ workers," 15 June 2020

The Supreme Court has ruled that a landmark 1964 civil rights law protects gay and transgender workers from discrimination in a historic victory for the LGBTQ+ community. The six to three verdict is the biggest victory for LGBTQ+ rights since the court upheld marriage equality in 2015. The case concerned whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex, also covered LGBTQ+ workers.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” [Associate Justice of the Supreme Court], Neil Gorsuch wrote...

The Harris Funeral Homes case centered on Aimee Stephens, a trans woman fired after her boss claimed it would violate “God’s commands” if he allowed her “to deny [her] sex while acting as a representative of [the] organization".  Stephens’ case was the first trans rights case to come before the Supreme Court and came at a time when attacks on trans people have spiked and the federal government and conservative states have moved to erode the rights of trans people.  Some 29 states currently allow some form of discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodation...

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