Can employers refuse to hire candidates because they are transgender? How about firing someone for being gay? The Supreme Court starts its new term this week with three cases on discrimination, sexual orientation, and gender identity. The justices will decide either that such discrimination is not covered by federal law or that it is covered by federal law and apply new meaning to the words used to draft the law.
No one who voted on the Civil Rights Act of 1964 thought it conveyed legal protections to Ls, Bs, Gs, or Ts. Instead, the law provides that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees. Prohibiting sex-based discrimination – as understood by the legislature, the public, and President Lyndon Johnson, who signed the law 55 years ago – was generally about forbidding discrimination against women. That may not stop the Supreme Court from retroactively including these protections in the law, no matter the plain understanding of it and those who wrote and passed it.
When the law was written, it wasn’t intended to cover same-sex discrimination, but the Court included it because the justices said the law as passed did include it, however unintentional. As Justice Antonin Scalia wrote for a unanimous Court in 1998 in Oncale v. Sundowner:
”[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
So is the inclusion of gender identity and sexual preference akin to the inclusion of same-sex harassment? While not anticipated, are they clearly covered or excluded as a different kind of grant altogether? Those considerations face the justices due to the rulings of lower courts, which have split on the issue.
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The Second Circuit Court of Appeals, for instance, has ruled that sexual orientation is included because of evolving doctrines and an executive agency position. From its ruling establishing that orientation is included, the Court said legal doctrine evolves, and in 2015 the EEOC held, for the first time, that “sexual orientation is inherently a ‘sex‐based consideration’” and that meant “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”
While the Supreme Court hears about both gender identity and sexual preference on the same day, the justices need not find both are included or excluded together. Sexual preference seems a harder case to make for this lawyer because homosexual sex was itself illegal in so many jurisdictions when the law was passed. As law professor Richard Epstein says:
“[I]t becomes odd in the extreme to posit that sexual orientation both could have subjected someone to criminal punishment and simultaneously could have formed a protected category under Title VII.”
This is the Supreme Court’s first full term with both of President Donald Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh, sitting. Justice Kavanaugh replaced retiring Justice Anthony Kennedy, who voted with the Court’s left bloc to rule 5-4 that the 14th Amendment, passed in 1868, included the rights of same-sex couples to marry.
The Civil Rights Act of 1964 applies to businesses with 15 or more employees.
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