The U.S. Supreme Court will consider whether federal anti-discrimination laws prevent employers from firing workers because of their sexual orientation and gender identity.
The court announced last week that it accepted three cases involving gay, lesbian and transgender employees for the term that will begin in October. A decision is expected next year.
The central issue focuses on Title VII of the 1964 Civil Rights Act and whether the term “on the basis of sex” bans discrimination based on sexual orientation and gender identity.
The court is being asked to parse words and intentions of a law that is decades old.
The issue has split circuit courts on whether the federal anti-discrimination laws prevent employers from firing workers because of their sexual orientation and gender identity.
What has frustrated many of those in the employment law community has been the failure of Congress to act on legislation that would have guaranteed rights to gay and transgender individuals.
The opportunity arose in 1994 when Congress first introduced the Employee Nondiscrimination Act. This proposed legislation, and subsequent versions, have been introduced on a regular basis over the years.
If approved, it would have negated the need for Supreme Court interpretation and guaranteed rights to these individuals in the workplace.
But Congress has failed to act to guarantee employment rights to gay, lesbian and transgender employees.
The Supreme Court now is faced with determining whether Congress in 1964 intended to include lesbian, gay, bisexual and transgender individuals when lawmakers approved Title VII prohibiting employers from discriminating on the basis of race, color, religion, sex or national origin.
The federal circuit courts remain split on this issue.
A federal court in Atlanta concluded that Title VII doesn’t prohibit “discharge for homosexuality.”
The federal appeals court in New York concluded that discrimination based on sexual orientation is protected under the law, while a federal appeals court in Cincinnati ruled in favor of an employee, saying that the law protected transgender workers..
To make things more complicated, another federal appeals court ruled earlier this month that Title VII does not protect a heterosexual who claims he was discriminated against for being heterosexual and opposing homosexuality.
Now the question is how the Supreme Court will rule in these cases.
As with many mainstream issues, the law can’t seem to keep up with an evolving society.
The good news is that employers need not worry about what the law says. They can independently without any affirmation of the law refuse to tolerate any form of discrimination or harassment based on sexual orientation or gender identity.
Employers need to implement policies that mandate nondiscrimination and harassment for sexual orientation and gender identity.
Companies need to make sure that managers are trained to understand the business’s expectations for nondiscrimination and harassment within the LGBTQ community and to be sensitive if such situations arise.
Employers don’t need a law to do the right thing — they need policies, accountability and leadership.