LGBTQ people everywhere in the United States should have a right to sue for discrimination on the job, as they already can in 24 states, two U.S. territories and the District.
Such a right is not established in federal law, though, at least not in the statute at issue, Title VII of the 1964 Civil Rights Act, which banned employment discrimination because of race, religion, national origin or sex.
Hence last week’s cases. Advocates for victims of alleged sexual orientation and gender identity discrimination argue that Title VII actually can be read to encompass their complaints. Bias against gay men, lesbians and transgender people traces ultimately to assumptions and stereotypes about how men and women ought to behave, they maintain, and is therefore “because of . . . sex.”
“When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” Pamela S. Karlan, a law professor at Stanford University, told the court last week.
It’s a clever argument, which leverages past Supreme Court rulings finding employers liable under Title VII for gender stereotyping and sexual harassment. The Equal Employment Opportunity Commission embraced it in 2015, as did Chicago- and New York-based federal appeals courts.
But the argument might be too clever by half — which is why most other appeals courts did not agree, creating a conflict the justices must now settle.
The fact is that sexual orientation and gender identity never came up in debates over Title VII in the 1960s. The main issue was race, with rights for women — sex discrimination — an afterthought, and a controversial one at that.
Equally clear, and even more relevant: Congress for decades after 1964 acted as though it had not banned job discrimination against LGBTQ people.
Starting in 1974, lawmakers repeatedly introduced bills to add sexual orientation to Title VII, including in almost every session after 1994. The legislation passed one house or the other over the years, but never both.
If Title VII’s reference to “sex” already incorporated sexual orientation and gender identity, then all of this was just wasted effort — as were state nondiscrimination measures.
That can’t be, Judge Gerard E. Lynch argued in an opinion dissenting from the U.S. Court of Appeals for the 2nd Circuit’s ruling, which adopted the more expansive reading of “because . . . of sex” last year.
Lynch, a Columbia law professor named to the appeals court by President Barack Obama, reviewed the social, political and legislative history of Title VII before concluding, “regretfully,” that sexual orientation discrimination is logically separate from sex discrimination and that Congress has not yet banned it.
“When interpreting an act of Congress, we need to respect the choices made by Congress about which social problems to address, and how to address them,” Lynch wrote.
If the justices’ comments and questions at oral argument are any indication, the Supreme Court could well follow Lynch’s approach, with conservative, Republican-appointed justices making up a 5-to-4 majority, and liberal Democratic appointees in dissent.
That would perpetuate the status quo. Yet the alternative, legislating from the bench, entails risks, starting, in this case, with a lot of new litigation over religious-employer exemptions, single-gender athletics and the dread bathroom issue — all of which came up at oral argument.
If gay rights advocates lose, they might blame President Trump’s appointees, Neil M. Gorsuch and Brett M. Kavanaugh — especially the latter, since he replaced the court’s best friend of gay rights, Justice Anthony M. Kennedy.
A more appropriate target, though, might be Senate Majority Leader Mitch McConnell (R-Ky.), and not because in 2016 he opportunistically blocked Obama’s nomination of moderate Judge Merrick Garland.
In May, the Democrat-controlled House passed the Equality Act, which would write sexual orientation and gender identity into Title VII; the vote was 236 to 173,
with eight Republicans in the majority.
That bill now languishes in McConnell’s Senate inbox, with little or no prospect that the upper house will even try to move it.
Unlike past bills, the Equality Act covers public accommodations, jury service and the like, in addition to employment nondiscrimination. Yet even job-bias-only legislation never achieved final passage, because most Republicans opposed them, in deference to their evangelical base. The same political dynamic prevails in McConnell’s Senate now. (The prospect of judicial intervention also reduces what little incentive he had to engage on the issue.)
The Supreme Court’s ruling is due by July — the middle of an election year. A defeat for LGBTQ advocates would disappoint them, to be sure, but also, potentially, energize efforts to elect lawmakers who can and will fix the hole in Title VII, once and for all.