Soon after President Trump finalized a regulation saying that the Affordable Care Act’s ban on sex discrimination in medical care doesn’t apply to transgender people, the United States Supreme Court held, in a surprising landmark decision on Monday, June 15, 2020, that lesbian, gay, bisexual, and transgender people are protected from discrimination by Title VII of the 1964 Civil Rights Act. The 1964 Civil Rights Act prohibits employment discrimination on the basis of sex. The Court interpreted this to also include sexual orientation and gender status. This brings federal law in line with New Jersey law, since the rights of LGBTQ+ employees have been included in the Law Against Discrimination since 2006 (defined they are as “gender identity or expression”).
The Court’s decision comes from the case of R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, filed in May 2018. In that case, Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., in Michigan. For most of her employment at the Funeral Home, Stephens lived and presented as a man. However, shortly after she informed the Funeral Home’s owner and operator that she intended to transition from male to female, she was terminated and offered money in exchange for her termination with the funeral home. Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that she had been terminated based on unlawful sex discrimination. After conducting an investigation, the EEOC decided to bring a lawsuit against the Funeral Home charging that it had violated Title VII of the Civil Rights Act of 1964 by terminating Stephen’s employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes. The district court granted summary judgment to the Funeral Home, and a panel of the US Court of Appeals for the Sixth Circuit reversed, holding that the Funeral Home’s termination of Stephens based on her transgender status constituted sex discrimination in violation of Title VII. The Supreme Court affirmed in favor of the EEOC in a 6-3 decision. Unfortunately, Stephens did not live to see the Court’s decision because she died of kidney disease on May 12, 2020. However, her legal fight was carried on by her spouse.
Before Monday, a person could be legally fired for their sexual orientation or gender identity in 26 states. Some of these states have their own laws prohibiting job discrimination based on sexual orientation or gender identity. Others provide that protection only to public employees. While those laws remain in place, the Court’s recent ruling means federal law now provides similar protection for LGBTQ employees in the rest of the country.
“It’s huge, of course,” said Mike Farhi, a partner at Kates Nussman Ellis Farhi & Earle in Hackensack, New Jersey, whose practice includes employment discrimination. “It’s of equal importance to the ‘right to marry’ U.S. Supreme Court decision of 2015.” Now, on paper at least, LGBTQ+ people have the full range of protections enjoyed by every other American. New Jersey and a few other states have offered these employment protections for years. Now, employers in every state are on notice and should change their policies and procedures immediately. Otherwise, the courts will be flooded with new lawsuits.”
Ironically, many conservative Christian organizations and employers claim that this decision could interfere with their religious freedoms. However, others feel that refusing LGBTQ+ job applicants and employees or terminating their employment due to their identity, isn’t religious freedom but rather it is discrimination. Gay and transgender rights groups considered the case a highly significant one, even more important than the fight for the right to marry, decided by the Supreme Court 5 years ago.
While this is a huge step forward in regards to civil rights in this country, there is no doubt that as many questions arise regarding religious freedom and its interaction with Title VII in the future, employment discrimination cases based upon sexual orientation will continue to flood the courts.
Sadayah Q. DuRant-Brown is a recent graduate of Rutgers School of Law, where she was Editor of the Race and The Law Review Journal. We are pleased to introduce her as a new contributor.