The Supreme Court appeared closely divided after hearing two hours of courtroom arguments Tuesday on whether existing federal law forbids job discrimination on the basis of sexual orientation and gender identity.
The law in question is Title VII of the Civil Rights Act of 1964, which banned discrimination on the basis of sex, without explicitly banning discrimination over a worker’s sexual orientation or gender identity.
Conservative justices argued that sexual orientation was not on the minds of lawmakers in the 1960′s. On the liberal side, meanwhile, Justice Sonia Sotomayor asked, “At what point does a court continue to allow invidious discrimination? We can’t deny that homosexuals are being fired just for who they are.”
It’ll be up to the justices to determine whether the Civil Rights Act of 1964, as written, already covers workers’ sexual orientation and transgender status.
The court’s four liberal justices showed Tuesday they are likely to side with workers who were fired because of their sexual orientation or transgender status, while conservative justices suggested it was up to Congress to clarify the scope of that protection for workers.
With a near-split, the swing vote could turn out to be Justice Neil Gorsuch, who was appointed by President Donald Trump, as he was receptive to the argument that no matter what Congress had in mind in 1964, the words of the law would apply to sexual orientation and transgender status in 2019.
“Isn’t sex also in play here?” he asked. "And isn’t that enough?”
Two of the three cases heard Tuesday by the court have been consolidated into one. Both are from workers who say they were fired for being gay. The third case comes from a woman who was fired because her boss disapproved of her being transgender.
A decision on the cases isn’t expected to come until next year. The ruling will be especially important for Florida and 27 other states that don’t have statewide legal protections for all LGBTQ workers.
Altitude Express Inc. v. Zarda — Donald Zarda, a skydiving instructor who was working on Long Island, New York, claimed he was fired in 2010 because he was gay. Zarda testified that he was fired from Altitude Express days after he told a customer he was gay to make her more comfortable with being strapped together for a jump. After a complaint was filed with the company, it said it fired Zarda for “inappropriate behavior in the workplace."
After Zarda’s death in a base jumping accident in 2014, his family continued his case. Zarda initially lost his lawsuit after a district court ruled it isn’t illegal to fire someone over their sexual orientation. The 2nd U.S. Circuit Court of Appeals ruled for him, however, and the case now sits in front of the Supreme Court, consolidated with Bostock vs. Clayton County.
Bostock vs. Clayton County — Gerald Bostock was a juvenile court official in Clayton County, Ga. In early 2013, after working for the court for a decade, he joined a gay softball league, which he actively promoted. Bostock was fired during a meeting in May 2013 due to “conduct unbecoming of a county employee." The following month, the county said Bostock had been fired due to misspent county funds.
Bostock argues that the stated "misspent county funds” were “a pretense for firing him for being gay.” He unsuccessfully sought legal recourse for workplace discrimination in 2016, but a district court ruled Title VII of the Civil Rights Act does not include protection against discrimination based on sexual orientation. The case was later consolidated with Altitude Express Inc. v. Zarda before the Supreme Court.
R.G. & G.R. Harris Funeral Homes Inc. vs. EEOC — Aimee Stephens said she considered herself a transgender woman for most of her adult life but presented herself as a male in her job at a funeral home. She worked at R.G. &. G.R. Harris Funeral Homes for six years, but was terminated by the funeral home’s owner two weeks after she began wearing a dress to work — the workplace’s required attire for female employees, as written in the employee handbook.
Stephens filed a complaint with the Equal Employment Opportunity Commission, saying she had been discriminated against for being transgender. A district court in Michigan ruled that one’s gender identity was not protected under the Civil Rights Act of 1964, and that, because her employer was a devout Christian, the Religious Freedom Restoration Act gave him the ability to fire Stephens if she would not conform.
Meanwhile, in Florida:
Florida currently protects gender identity against discrimination in the workplace, but not sexual orientation.
State lawmakers are attempting to extend those protections to include sexual orientation, with several from the Tampa Bay area introducing bills for the 2020 legislative session.
Senate Bill 206, sponsored by Sen. Darryl Rouson, D-St. Petersburg, and House Bill 161 would amend the state’s Civil Rights Act of 1992 to prohibit such discrimination. (The act already prohibits discrimination on the basis of race, color, religion, sex, pregnancy, national origin, age or handicap.)
The bills also would prohibit businesses and landlords from discriminating for those same reasons. They do leave one caveat, however — the language allows discrimination for religious reasons.
Similar bills have been drafted in prior years, but have died in the state’s GOP-controlled Legislature.
Polling suggests, however, that this year could be different — with 68 percent of Floridians supporting “broad nondiscrimination protections for lesbian, gay, bisexual and transgender people," according to the nonprofit research firm Public Religion Research Institute.
While legislation to ban workplace discrimination will again be voted on in 2020, an official apology from the state may be in store to the victims of a committee it operated in late 1950′s and early 1960′s that attempted to oust gay teachers and students at Florida universities.
Florida Sen. Lauren Book, D-Broward, has filed a resolution (SCR 74) that offers a “formal and heartfelt apology to those whose lives, well-being, and livelihoods were damaged or destroyed by the activities and public pronouncements of those who served on the committee."