Editor’s Note: Jocelyn Samuels is the executive director of the Williams Institute at UCLA School of Law. She was a top ranking civil rights official in the Departments of Justice and Health and Human Services during the Obama administration. The opinions expressed in this commentary are her own.
The Supreme Court announced on Monday that it would consider three cases that raise a simple but critical issue: whether discrimination by employers based on sexual orientation and gender identity violates Title VII, the federal law that bans discrimination in the workplace based on sex, race, color, religion and national origin.
The resolution of this issue could not be more consequential. The Supreme Court will decide whether LGBT workers are guaranteed protections under this law.
The Williams Institute has estimated that there are 8.1 million LGBT workers age 16 and older in the United States, about half of whom live in states without explicit legal protections against sexual orientation and gender identity discrimination in the workplace. And across the country, these workers are all too frequently subject to discrimination and harassment. Recent surveys have shown that about one in five LGBT Americans report that they have experienced discrimination when applying for jobs or seeking promotions. State and federal agencies that process employment discrimination claims received more than 9,000 charges between 2013 and 2016 alleging discrimination based on sexual orientation or gender identity.
We need look no further than the three Supreme Court cases to see the gravity of the actions taken against LGBT workers. Donald Zarda and Gerald Lynn Bostock were fired from their jobs after their employers learned they were gay. Aimee Stephens was discharged when she notified her employer that she is transgender and planned to come to work as the woman she is. Stephens was the same capable employee before and after her transition, but her employer said it would be unacceptable for her to appear and behave as a woman.
These types of discrimination contribute to significant challenges for the LGBT community. For example, our estimates show that, nationwide, 9% of LGBT people are unemployed compared to 5% of non-LGBT people. A quarter of LGBT people have incomes lower than $24,000 per year compared to 18% of non-LGBT people. And substantial research has demonstrated that anti-gay prejudice puts LGBT people at an increased risk of adverse health outcomes.
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Many federal courts have held that existing federal prohibitions on sex discrimination include discrimination based on sexual orientation and gender identity. That’s as it should be. When an LGBT employee is fired because of their sexual orientation or gender identity, the employer is acting based on stereotypical notions about gender — how people should behave and dress, or what the gender of their romantic partners should be. The Supreme Court has long recognized that such stereotypes are impermissible in the workplace. Moreover, if the employer would not have fired a woman for being involved with a man, it is outright sex discrimination to fire a man for the same actions.
In fact, Congress is considering legislation to confirm this understanding. The Equality Act, which would enact explicit statutory protections against sexual orientation and gender identity discrimination in a host of contexts, was recently introduced on a bipartisan basis in both the House and the Senate; House committees have held hearings this month on the legislation. If the act is passed into law, there will no longer be any doubt that the type of treatment that Zarda, Bostock and Stephens report is against the law.
But until the Equality Act becomes the law, the Court’s decision in the pending cases will govern the protections that LGBT people receive in the workplace and likely elsewhere, such as in education, housing and healthcare. The question before the Court is whether it will take away rights that lower courts have held are provided to LGBT people under current federal law. If the Court eliminates those rights, it will increase the risks of discrimination against LGBT people — a result especially damaging for the 4.1 million LGBT people who live in states without any state-level protections and who will therefore have no recourse at all for the discrimination they endure.
Everyone should have the freedom to live and work free from discrimination because of who they are or who they love. Federal law and American values recognize that fundamental principle. Let’s hope that the Supreme Court does, too.