U.S. Supreme Court will weigh in on whether LGBTQ people can be fired because of their identities

LGBT rights word cloud concept. Vector illustration

By Steve Kilar, June 2019 Issue.

At a Chili’s restaurant in West Phoenix, a manager told Meagan Hunter last year that if she wanted to be promoted from server to shift leader she needed to “dress more gender appropriate.”

“Are you telling me that I need to have my breasts hanging out to be successful in your company?” responded Meagan.

“Not in those words,” he replied.

But it was clear to Meagan, who is a lesbian, what he meant. He wanted her to dress more stereotypically feminine in exchange for the higher-paying job. Meagan later learned that manager also did not consider her for a bartender position because he thought a lesbian bartender would not draw desirable customers.

“I couldn’t continue to work at a place where my willingness to conform to a stereotype was more important than my job performance,” Meagan wrote in a testimonial posted on the ACLU’s website. “So, I left a job that I enjoyed and said goodbye to the coworkers I considered family.”

With the ACLU’s help, Meagan filed an employment discrimination claim with the U.S. Equal Employment Opportunity Commission, which enforces federal employment discrimination laws.

The legal merit of discrimination claims like Meagan’s — those based on the sexual orientation or gender identity of the employee — will be determined during the next U.S. Supreme Court term. The Supreme Court recently decided to hear three cases about discrimination against LGBTQ employees.

Title VII, a portion of the Civil Rights Act of 1964, makes it unlawful for businesses with more than 15 workers to discriminate against employees based on race, skin color, religion, national origin and sex. Sex discrimination includes discrimination based on gender identity and sexual orientation, according to the EEOC and some federal courts.

The idea that sexual orientation and gender identity discrimination are forms of sex discrimination may seem obvious to LGBTQ people and their allies. But the notion that sex discrimination under current federal law includes sexual orientation and gender identity discrimination is still up for debate. The Trump administration has sided with businesses that want to discriminate against LGBTQ people, arguing in federal sex discrimination cases that being queer can be considered a fireable offense.

There’s a lot riding on the Supreme Court’s decision, both for individuals and for LGBTQ people as a collective.

For Meagan, losing her job meant a significant income decline, which made it more difficult to support herself and her son. Although she was able to get a server position at another restaurant within a few weeks, newer employees are scheduled to work fewer hours. It will take time to build up the seniority she had at Chili’s, where she was a highly rated employee. Meagan had to put her plans for buying her first home on hold.

Aimee Stephens, whose discrimination case will be considered by the Supreme Court, and her wife had to rely on a single income to support themselves and their daughter, who was in college. They had to sell belongings to pay their bills. Aimee, who was fired from her job as a funeral director after she came out as transgender, also lost her health insurance and was forced to find other ways to pay for expensive medical care.

“I had given almost seven years of my life to the funeral home, offering countless families comfort when they needed it most,” Aimee wrote in a blog post shared by the ACLU, which is representing her before the Supreme Court. “Being discarded so coldly was hard to understand.”

For LGBTQ people collectively, the outcome of the Supreme Court decision may impact more than the ability to bring a federal employment discrimination claim. A determination that sex discrimination in the employment context does not cover sexual orientation or gender identity discrimination may ripple into other areas of nondiscrimination law.

“If federal law says it’s fine to fire someone because she’s lesbian or transgender, other federal civil rights laws may well not protect LGBTQ people, either,” wrote James Esseks, the director of the ACLU’s LGBT & HIV Project. “The federal education anti-discrimination law may not stop schools from harassing transgender students. The Federal Housing Act may not stop landlords from evicting same-sex couples. And the Affordable Care Act may not prevent health care providers from turning away transgender people.”

We’re not likely to know the Supreme Court’s stance on employment discrimination against LGBTQ people before June 2020. I hope a majority of the justices realize that no one should have to live in fear that they can be fired just because of who they are.

In the meantime, we need to keep fighting for explicit laws barring sexual orientation and gender identity discrimination. Having these laws at the state and federal levels will establish unambiguous protections for LGBTQ people.