Can an employer discriminate against me (fire me or not hire me or give me worse benefits) because of my sexual orientation or identity? No.
So proclaimed the U.S. Supreme Court in landmark decisions made a couple of weeks ago. There were three cases where the employers fired their employees for either being gay or transgender.
The claim by the fired employees, and the ruling by the court, was based on Title VII of the Civil Rights Act of 1964. That act, one of the most profound pieces of federal legislation of the 20th century, outlawed discrimination in public education, voting rights, public accommodations, and/or employment based on race, color, religion, sex, or national origin. The act was divided into 11 major sections called “Titles.” Title VII deals with discrimination in employment.
With certain particular exceptions, Title VII applies to all employers engaged in an industry affecting commerce. The employer must have 15 or more employees on each working day of 20 or more calendar weeks.
The question is whether the term “sex” under Title VII included one’s sexual orientation or identity. The court, in a 6-3 decision on all three cases, concluded that intentionally discriminating against an employee because of their homosexuality or being transgender means that an employer is discriminating against that employee because of “sex.” An employee intentionally fired because of their homosexuality or transgender identity thus violates Title VII even if all an employer’s employees, male and female, homosexual or transgender, are subjected to the same rules within each group.
The employers argued that the word “sex” when added to the Civil Rights Bill during its legislative debate in 1963-64, was not envisioned by the bill’s authors to protect LGBT persons.
The court noted the broadness of the term “sex” could include interpretations that were “unanticipated” when the law was adopted. The Supremes’ majority opined that while this case might reach beyond the “principal evil” that the legislators may have intended or expected to address, a statute being applied in ways not anticipated by Congress shows the breadth of a legislative command. The term “sex” was not limited to the act. The court further noted that because a group was unpopular when a law was passed — in this case, homosexual or transgender employees — does not mean that the law should be not enforced.
Such ruling has been hailed by proponents of LGBT rights. Federal courts have tiptoed around the issue of whether sexual orientation was protected under Title VII, with some interpreting Title VII to grant such coverage and others not.
An employee who was wrongly fired under Title VII can seek possible back pay, front pay (what they would have earned in the future), punitive damages and attorney’s fees, and other costs of the suit.
As an employer you might be asking, where does Congress get the authority to legislate anything regarding whom I employ or to whom I sell my service or goods? Because, you knucklehead, the U.S. Congress was vested in regulating interstate commerce under Article I, Sec 8 of the federal constitution; and to protect equal protection rights under the 14th Amendment and voting rights under the 15th Amendment.
If only you had stayed awake during civics class. Now you’re an employer. This is why you needed to pay attention to.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.