SCOTUS Should Protect LGBTQ Workers. But Will It?
Robert Volk discusses three Supreme Court cases that will test the borders of the landmark 1964 Civil Rights Act in this POV for BU Today.
Earlier this week, the Supreme Court announced that it would review three cases that could decide whether the ban on discrimination based on sex in Title VII of the Civil Rights Act of 1964 applies to discrimination based on sexual orientation and gender identity. While the outcome is uncertain, the court should take an expansive view of the protections embodied in Title VII and hold that the act prohibits discrimination based on sexual orientation and gender identity. Failure to do so would set back the struggle for equal rights and further erode public trust in the ability of the court to safeguard the rights of all Americans.
Title VII bans discrimination in employment based on a person’s race, color, religion, sex, or national origin. For many years after its initial enactment, courts declined to extend Title VII’s prohibition on sex-based discrimination to discrimination based on an individual’s sexual orientation or gender identity. In 2017, however, in Hively v. Ivy Tech Community College, the United States Court of Appeals for the Seventh Circuit held that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII. In reaching its decision, the seventh circuit relied on the Supreme Court’s decision in Price Waterhouse v. Hopkins. In that case, the Supreme Court found that a woman employee who was advised to “wear makeup, have her hair styled, and wear jewelry” suffered sex-based discrimination in violation of Title VII. In doing so, the Supreme Court held that sex stereotyping violated Title VII’s prohibition of sex-based discrimination. The seventh circuit applied that reasoning to sexual orientation–based discrimination, stating that the plaintiff in Hively “represents the ultimate case of failure to conform to the female stereotype…: she is not heterosexual.”
The seventh circuit also looked to Loving v. Virginia, the Supreme Court case striking down laws prohibiting interracial marriage. In Loving, the Supreme Court held that Virginia’s law banning interracial marriage violated the Constitution’s Equal Protection clause because of its denial of an individual’s right to associate with another person because of that person’s race. Similarly, the seventh circuit held that discriminating against an employee based on the sex of the person with whom the employee wants to associate constitutes sex-based discrimination in violation of Title VII.
Moreover, in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a 2018 case, the United States Court of Appeals for the Sixth Circuit held that Title VII prohibits discrimination based on gender identity. In a case involving a transgender employee, the court found that discrimination based on transgender status was discrimination based on “sex stereotyping.” The court also found that discrimination based on an employee’s status as a transgender person is discrimination “motivated, at least in part, by the employee’s sex.”
Related News
- Cite-Seeing at the High Court
- Rebecca Ingber Testifies in Supreme Court Confirmation Hearing
- Is Trump’s Declaration of a National Emergency Constitutional?